Amendments to Probate Rules Coming Into Effect

On October 1, 2022, amendments to King’s Bench Rules 74 and 75, regarding Probate, come into effect. The primary objective of the new rules is to eliminate jargon and use plain language to make the rules easier to understand.

Along with new rules, come new forms. There will be a little leeway to allow the profession to get used to the new forms, but members could face the risk of having their documents rejected for lack of compliance.

Make sure you and your team are using the correct forms.

M.R. 68/2002

M.R. 69/2002

M.R. 70/2002

All Court Forms

eLex September 2022

News

Manitoba Government Launches Five-Year Review of Workplace Safety and Health Act, Associated Regulations

R. v. Boily, 2022 ONCA 611: Sentence appeal regarding the imposition of a driving prohibition where accused pled guilty to a single count of criminal negligence causing death, contrary to s. 220 of the Criminal Code. Appellant argued that since there is no reference in s. 320.24(4) of the Criminal Code to criminal negligence causing death, then the driving prohibition cannot be imposed. Fairburn, A.C.J.O. conducts a thorough statutory review of the amendments to the Criminal Code under Bill C-46. Appeal allowed and the driving prohibition was set aside.

 Terry Davidson. Manitoba Lawyers React to Call for Reverse Onus Bail Changes for Knife Crimes. The Lawyer’s Daily, September 2, 2022. Response to letter from Manitoba Justice Minister Kelvin Goertzen to Federal Justice Minister David Lametti.

Court Notices & Practice Directions

All COVID-19 Notices and Practice Directions are available here.

Court of King’s Bench

 

  • September 8, 2022 – Change of Court Name –  pursuant to s. 3 of The Court of Queen’s Bench Act, the Court in name and in all documents and proceedings shall be designated and described as the Court of King’s Bench.

Discipline Digests

Manitoba Law Society Decisions

 

  • The Law Society of Manitoba v. Burwash, 2022 MBLS 8 

New Library Resources

New In Print

Law of evidence in Canada – 6th ed. “This new edition of the seminal work offers current and in-depth coverage of the Canadian law of evidence, and has been updated to include significant recent developments. It is the only major Canadian treatise with in-depth coverage of both civil and criminal evidence.”

Directors’ duties in Canada “The 7th edition of Directors’ Duties in Canada addresses directors’ duties as they arise in the context of public and private companies, Crown corporations, investment funds and not-for-profit organizations. This updated and enhanced edition offers current, practical and accessible guidance, intended for directors and for those who advise them, on a broad range of specific topics including what directors’ duties are, best practices in discharging those duties, and how directors can avoid liability and embarrassment.”

Agriculture Law in Canada, 2nd Edition “Introducing the second edition of Agriculture Law in Canada the only Canadian treatise on agricultural law offering comprehensive, national coverage of the legal issues facing this critical industry. Farming and its related industries have undergone many changes since the first edition was released in 1999. This new edition has been significantly updated to reflect the statutory and case law developments of the past 20 years.”

Canadian Personal Property Security Law — 2nd ed. “A comprehensive, up-to-date treatise covering personal property secured transactions law in Canada, this resource deals with all significant statutory and regulatory provisions applicable under the Personal Property Security Act (PPSA), the Securities Transfer Act and the Bank Act. The treatise also provides a comprehensive coverage of case law.”

Updated

Oppression remedy “This work explains the principles of corporate governance with emphasis on shareholder disputes. It is a critical resource for advising corporations, boards or shareholders and creditors about their rights and duties. An expansive array of topics helps you to understand the details of proceedings under the oppression remedy provisions.”

New Online Titles

These new titles from Irwin Law are now available on vLex.

Available in the Library Resources section of the Member’s Portal

 

Canadian Family Law – 9th edition –  “This new edition incorporates fundamental legislative changes to the Divorce Act. The most fundamental legislative changes replace the loaded terminology of “custody” and “access” orders in favour of “parenting orders” that focus on parenting time and decision-making authority and “contact orders” with respect to third parties. They also establish a detailed non-exhaustive list of criteria to assist courts in determining the “best interests of the child”; call upon prospective litigants and their lawyers to address the feasibility of using out-of-court family dispute resolution services; introduce measures to effectively assist courts in addressing family violence; and create a framework for situations where one parent wishes to relocate a child of the marriage.”

Child Support Guidelines in Canada, 2022 – “Child Support Guidelines in Canada, 2022 continues the tradition of presenting comprehensive, current caselaw and analysis in a very practical and easily accessible format. Relevant cases from every Canadian province and territory are cited in support of the principles set out in the textual commentary. Significant changes have been introduced in chapters 11 and 13 with respect to retroactive child support orders and remission of child support arrears following the Supreme Court of Canada’s judgments in Michel v Graydon and Colucci v Colucci.”

Personal Property Security Law – Third Edition – “This book examines the legal framework for secured credit set out in the Personal Property Security Act (PPSA). First proclaimed by Ontario in 1976, the PPSA is in force today in all nine common law provinces and the three federal territories. This third edition updates the area of personal property security law in Canada with new caselaw, and considers the important legislative amendments that have been recently introduced in several provinces.”

Book Reviews

Review taken from the Canadian Law Library Review, Vol. 47 Issue 2

Big Data Surveillance and Security Intelligence: The Canadian Case. Edited by David Lyon & David Murakami Wood. Vancouver: UBC Press, 2021. xii, 290 p. Includes bibliographic references and index. ISBN 9780774864176  (hardcover) $89.95; ISBN 9780774864183 (softcover) $32.95; ISBN 9780774864206 (ePUB) $32.95.

Reviewed By Erica Friesen

“This wide-ranging collection interrogates the intelligence- gathering practices of Canadian security agencies in the shift to “big data” surveillance methods.

Multidisciplinary in nature, this book draws on expertise from an array of fields, including law, information science, communications, criminology, social justice, and surveillance studies. Lyon and Wood’s introduction accomplishes the enormous task of both contextualizing big data practices in surveillance and situating Canadian security intelligence within a global context.

Substantive Law

Administrative Law

Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30: Judicial review of s.2.4(1.) of the Copyright Act as it pertains to online music services. Copyright Board concluded that the section allows for two royalties to be payable when a work is distributed online. FCA overturned the Board. Per Wagner C.J. and Moldaver, Côté, Brown, Rowe, Kasirer and Jamal JJ.:

[8] The Board’s interpretation is not required by art. 8 of the WIPO Copyright Treaty. The Board’s interpretation of s. 2.4(1.1) would fulfill Canada’s obligations under art. 8. But other interpretations of s. 2.4(1.1) that are more consistent with its text, context, and purpose also conform to art. 8. In my view, s. 2.4(1.1) clarifies two things: (1) s. 3(1)(f) applies to on-demand technologies, and (2) a work is performed as soon as it is made available for online streaming. This interpretation of s. 2.4(1.1) is technologically neutral and allows Canada to fulfill its obligations under art. 8 through a combination of the performance, reproduction, and authorization rights in s. 3(1). If a work is streamed or made available for on-demand streaming, the author’s performance right is engaged. If a work is downloaded, the author’s reproduction right is engaged. If a work is made available for downloading, the author’s right to authorize reproductions is engaged. There are no gaps in protection.

[9] As this interpretation of s. 2.4(1.1) is more consistent with its text, context, and purpose, I would adopt it over the Board’s. If a work is downloaded or made available for downloading, s. 3(1)(f) is not engaged. If a work is made available for streaming and later streamed, s. 3(1)(f) is only engaged once. It follows that I would dismiss the appeal.

Per Karakatsanis and Martin JJ (concurring):

[118] In my view, a faithful application of the Vavilov framework can only result in one conclusion — the standard of review in this case is reasonableness. Even so, the Copyright Board of Canada’s decision cannot be upheld. The reasons are unreasonable in light of the statutory context and this Court’s precedents.

 Law Society of Saskatchewan v. Abrametz, 2022 SCC 29: Appeal arising from disciplinary proceedings leading to the disbarment of the respondent. Respondent applied for a stay of proceedings on the basis of inordinate delay. Appeal addresses the doctrine of abuse of process by delay in the administrative context, as well as clarifying the standard of review applicable in statutory appeals. Per Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ.: appeal allowed.

[4] I would allow the appeal. While the Court of Appeal correctly determined the standard of review, it failed to apply it properly. The Hearing Committee did not err when it concluded that there was no abuse of process.

Per Côté J. in dissent:

[128] I have had the opportunity to read the reasons of my colleague Rowe J. I disagree with the majority’s disposition of this appeal. In my view, the delay in these proceedings amounted to an abuse of process, and the Saskatchewan Court of Appeal did not err in quashing the penalty for professional misconduct imposed on the respondent, Peter V. Abrametz ( 2020 SKCA 81 ). My disagreement with the majority, however, also extends to the legal principles governing the assessment of inordinate delay in administrative proceedings.

 Sara Blake. SCC Recognizes Complexities of Professional Discipline. The Lawyer’s Daily, July 13, 2022. Comment on Law Society of Saskatchewan v. Abrametz, 2022 SCC 29.

Civil Litigation

Mohr v. National Hockey League, 2022 FCA 145: Appellant commenced a class proceeding alleging that the respondents conspired to limit the opportunities of hockey players to play in Canadian major junior and professional hockey leagues. Respondents moved to strik on the basis if disclosed no reasonable cause of action. Question of statutory interpretation of  s. 45 and s. 48 of the Competition Act. Appeal dismissed.

 Normandeau v. Rond’s Marine Ltd. et al, 2022 MBCA 62: Appeal re applicable limitation period for a claim regarding a leaky boat. Plaintiff purchased a new boat from the defendant in 2015. After two voyages, the boat sank and was a total loss. Plaintiff began an action for breach of contract in January, 2018, more than two years after the loss. Issue is whether the claim is over an “injury to chattels” which has a two year limitation period, or if there is a six year limitation period. Trial judge concluded relevant question was whether the claim was one of “injury to chattels” which is a question of law. Examination of section 2(1)(g) of The Limitation of Actions Act. Appeal dismissed.

 Viceversa Developments Inc. v. The City of Winnipeg, 2022 MBQB 169: Action by plaintiff alleging the City was negligent in completing certain steps necessary to bring into force amendments to a zoning by-law, causing it damage. Plaintiff purchased a distinctive piece of land from CNR (a railway bridge) that he hoped to redevelop into residential housing. City required the parcel be rezoned. Plaintiff had 24 months to complete the application, and received two extensions, but failed to complete it. Bock, J. found the City was negligent in paring a Zoning Agreement, but it didn’t cause the plaintiff any legally compensable damage.

Smith v. Lehmann et al., 2022 MBQB 155: Dispute over remedial work completed on a condominium after purchasing. Defendant purchased condo from foreclosure, then renovated it and sold it. Condo was previously a storage unit and did not have an occupancy permit. Plaintiff purchased it and later learned it needed to be upgraded to obtain an occupancy permit. Condominium Corporation performed the work and claims against the plaintiff. Action resolved by summary judgment. Grammond, J. dismisses plaintiff’s claim and grants Condo Corp.’s counterclaim in part.

 Meaning of “Injury to Chattels” for Limitation, Court of Appeal Decision of the Week, Supreme Advocacy, 3 August 2022. Case comment on Normandeau v. Rond’s Marine Ltd. et al, 2022 MBCA 62.

Howard Winkler. For Google Liability, It’s All About the Snippet. The Lawyer’s Daily, September 2, 2022. Case comment on Google LLC v. Defteros, [2002] HCA 27 (Australia).

Corporate and Commercial Law

Capitol Steel Corporation v. White Owl Properties Limited, 2022 MBQB 170: Interpretation of a commercial lease. Dispute over who is responsible for paying for the structural and capital repairs and replacements required at the leased premises as well as whether there is relief against forfeiture. Building is over a century old and components have reached the end of their useful life. Analysis of work that constitutes a “repair” and work that constitutes a “replacement or improvement” to a leased premise. Examination of whether forfeiture of the lease is appropriate. Plaintiff is largely successful.

Tilbury v. Tilbury, 2022 MBQB 129: Application for order dissolving partnership between brothers of a farming operation. Request for method to distribute assets be referred to a master or alternatively, assets sold. Parties had attempted to distribute the assets themselves but the negotiations broke down. Abel, J. determines the date of dissolution and gives the parties 60 days to resolve ownership of the land or there will be a reference to a master for directions for the conduct of the sale.

Pride Real Estate Inc. et al. v. 5610550 Manitoba Ltd. et al., 2022 MBQB 51: Action over whether agreement reached in purchase and sale of shares, and whether defendant defamed plaintiff. Parties negotiated SPA over several years, and some money was paid. Trial necessary to see if facts showed that agreement was reached. Discussion of the test to prove there was a valid contract. Lanchbery, J. finds there was a valid contract, sets out damages. For defamation claim, he finds the plaintiff was defamed and orders general damages of $150,000 and punitive damages of $50,000.

Amanda Jerome. Court’s “Pragmatic” View of Disclosure “Provides Useful Direction,” Counsel Says. The Lawyer’s Daily, July 22, 2022. Case comment on Wong v. Pretium Resources Inc., 2022 ONCA 549.

Criminal Law

R. v. Kirkpatrick, 2022 SCC 33: Consent as it applies to sexual activity. Complainant consented to sex as long as accused wore a condom. Accused applied to have charge dismissed by a no-evidence motion. Trial judge granted motion; CA allowed Crown’s appeal, set aside acquittal and ordered a new trial, although the three judges split on the reasoning. Accused appeals re the setting aside of his acquittal. Appeal dismissed.

Moldaver, Karakatsanis, Martin, Kasirer and Jamal JJ.:

[2] I conclude that when consent to intercourse is conditioned on condom use, the only analytical framework consistent with the text, context and purpose of the prohibition against sexual assault is that there is no agreement to the physical act of intercourse without a condom. Sex with and without a condom are fundamentally and qualitatively distinct forms of physical touching. A complainant who consents to sex on the condition that their partner wear a condom does not consent to sex without a condom. This approach respects the provisions of the Criminal Code, this Court’s consistent jurisprudence on consent and sexual assault and Parliament’s intent to protect the sexual autonomy and human dignity of all persons in Canada. Since only yes means yes and no means no, it cannot be that “no, not without a condom” means “yes, without a condom”. If a complainant’s partner ignores their stipulation, the sexual intercourse is non-consensual and their sexual autonomy and equal sexual agency have been violated.

 

[3]  Here, the complainant gave evidence that she had communicated to the appellant that her consent to sex was contingent on condom use. Despite the clear establishment of her physical boundaries, the appellant disregarded her wishes and did not wear a condom. This was evidence of a lack of subjective consent by the complainant — an element of the actus reus of sexual assault. As a result, the trial judge erred in granting the appellant’s no evidence motion. Accordingly, I would dismiss the appeal and uphold the order of the Court of Appeal for British Columbia setting aside the acquittal and remitting the matter to the Provincial Court of British Columbia for a new trial.

Wagner C.J. and CôtéBrown and Rowe JJ., concurring.

[109] We agree with our colleague Martin J. on the proper disposition of this appeal. We, too, would dismiss Mr. Kirkpatrick’s appeal and uphold the order of the Court of Appeal for British Columbia for a new trial.

[111] But that is not what this appeal is about. This appeal asks whether this Court may interpret the same provision of the Criminal Code, R.S.C. 1985, c. C‑46, twice, in radically different ways, without overturning itself. Our colleague says it can. We say it cannot

R. v. Lafrance,2022 SCC 32: Issue of detention and right to counsel. Police suspected accused might have been involved in the death of the victim. They executed a search warrant and was interviewed. Three weeks later he was arrested, interviewed again and eventually confessed to killing the victim. At trial, accused sought to exclude his confession for a break of his right to counsel. Convicted by a jury of second-degree murder; appeal allowed and new trial ordered. Per Karakatsanis, Brown, Martin, Kasirer and JamalJJ.: appeal dismissed.

[5] I would dismiss the appeal. The police detained Mr. Lafrance on March 19, then breached s. 10(b) by failing to inform him of his right to counsel. They committed another breach of s. 10(b) on April 7 by refusing to allow him to contact a lawyer in circumstances which showed that his initial conversation with Legal Aid was insufficient for the purposes of s. 10(b), being “to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights” (Sinclair, at para. 26, citing RvManninen1987 CanLII 67 (SCC) , [1987] 1 S.C.R. 1233, at pp. 1242-43). These were serious breaches, substantially impacting Mr. Lafrance’s Charter‑protected interests, and admitting the evidence thereby obtained would bring the administration of justice into disrepute.

Wagner C.J. and Moldaver, Côté and Rowe JJ. dissenting:

[104] This case involves what should be a straightforward application of this Court’s jurisprudence under ss. 9 (the right against arbitrary detention), 10(b) (the right to retain and instruct counsel on detention) and 24(2) (exclusion of unconstitutionally obtained evidence when its admission would bring the administration of justice into disrepute) of the Canadian Charter of Rights and Freedoms. The majority of this Court begins its analysis by acknowledging this, but proceeds to adopt interpretations of those sections that depart from that jurisprudence. We cannot agree with that approach and the proposed outcome of this case.

R. v. Sundman, 2022 SCC 31: Issue of whether accused should be convicted of first or second degree murder. Victim was unlawfully confined, but escaped before being murdered. Trial judge convicted on second degree murder, reasoning that the time between escape and murder meant he was no longer unlawfully confined. CA overturned, holding that the unlawful confinement was temporally and causally connected to the murder, making it a single transaction. Appeal dismissed. Per Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ:

[5]  I would dismiss the appeal. In my view, Mr. McLeod was still unlawfully confined when he escaped from the truck and ran for his life. Even though Mr. McLeod was not physically restrained outside the truck, he continued to be coercively restrained through violence, fear, and intimidation. He was deprived of his liberty and was not free to move about according to his inclination and desire. The appellant then murdered him while unlawfully confining him. These two distinct criminal acts were part of a continuous sequence of events forming a single transaction. They were close in time and involved an ongoing domination of Mr. McLeod that began in the truck, continued when he escaped from the truck and ran for his life, and ended with his murder. The appellant is therefore guilty of first degree murder under s. 231(5)(e) of the Criminal Code.

R. v. Mazhari-Ravesh, 2022 MBCA 63: Appeal by accused of his conviction on six counts of sexual assault involving six different patients at his medical clinic. Accused and Crown apply for leave to appeal his sentence. Grounds for appeal include ineffective assistance of counsel, misapprehension of some of the expert’s evidence, and sentence imposed was harsh and excessive. Crown argues that the sentence was unfit.

R. v. Z. (M.J.), 2022 MBCA 61: Appeal of conviction of historical sexual assaults on the sole ground that the trial judge erred by dismissing his motion for a stay of proceedings under section 24(1) of the Charter based on a section 7 breach. CA found that trial judge did not make an express finding concerning a breach, but that a finding of no breach is implicit in her reasons. Error in law by failing to conclude there had been a section 7 violation. However, applying the correct law and balancing the seriousness of the charges, this is not a case where the exceptional remedy of a stay of proceedings is warranted. Appeal dismissed.

R. v. McLean, 2022 MBCA 60: Appeal of conviction for possession of a controlled substance for the purpose of trafficking and request for leave to appeal sentence. Accused was considered a courier at a mid-level of trafficking. Accused sought to have the drug evidence excluded, but was unsuccessful after a Garofoli review. Analysis of whether the trial judge incorrectly applied an adverse inference. Key sentencing controversy was parity. Extensive comparison and analysis of sentencing ranges for a mid-level courier. Conviction appeal denied; sentence reduced to nine years versus 12 years.

R. v. M.A.R.-S., 2022 MBQB 165: Sentencing decision after accused found guilty of sexual assault, sexual interference and sexual touching. Complainant was a child between the ages of 9-11 at the time. Principles of denunciation and deterrence are given primacy. Accused is considered to be a manageable risk in the community and a suitable candidate for supervised probation. Crown seeks a global sentence of eight years’ incarceration; defence submitted a global sentence of two years plus a further probationary period of three years. Bock, J. determines appropriate sentence is four years, six months.

R. v. Scott and Jack, 2022 MBQB 164: Trial over charge of first degree murder. Crown relies on significant video evidence from cameras in the vicinity as well as inadvertently through aand unrelated surveillance. Use of GPS tracking technology on vehicle used by accused. Evidence circumstantial; McKelvey, J. finds Scott as a principal and Jack as a participant, guilty of second degree murder.

R. v. Onakpoya, 2022 MBQB 158: Written reasons for denial of a stay of proceedings alleging a breach of right to be tried within a reasonable time. Accused charged June 26, 2019; trial rescheduled to September 26, 2022. Accused is representing herself. Parties agree that total delay is 39 months and two weeks. Grammond, J. determines net delay is 24 months and two weeks.

R. v. Sinclair, 2022 MBPC 40: Sentencing decision for conviction of communicating with a person under 18 for the purpose of sexual exploitation, commonly known as luring. Maximum jail sentence for s. 172.1(2) of the Criminal Code is 14 years and minimum is one year. Defense counsel challenges constitutionality of the mandatory minimum sentence. Crown argues for sentence of 3-5 years. Considerable analysis of relevant caselaw, including Friesen to determine which sentencing principles have priority. Accused sentenced to three years.

R. v. Harper, 2022 MBPC 37: Sentencing decision for offences of dangerous operation of a vehicle and assault with a weapon in incident of road rage. Accused pleaded guilty. Crown requests three years’ incarceration; defence requests nine months’ custody. No case law similar to the facts at bar. Martin, P.J. determines circumstances of offence require a custodial sentence; concurrent 10-month custodial sentence followed by 12 months of supervised probation.

Meryl Friedland and Dr. Andrew Haag. You Have the Right to be Read Something That You Probably Won’t Understand: Comprehensibility of the Right to Counsel. 2022 70 C.L.Q. 485 (WLC – LSM members can request a copy).

Without receiving a comprehensible right to counsel, detainees may not be receiving important protections relevant to significant choices that impact upon their liberty. A person who has been arrested or detained is immediately vulnerable relative to the state. They need to quickly make decisions that can affect the rest of their lives. With one misstep or misspeak, they can unknowingly incriminate themselves regardless of their actual innocence. While the right to counsel provides an opportunity to get advice on these decisions, a detainee cannot be expected to assert a right that they do not understand. The power imbalance that exists on arrest remains of the utmost importance in the discussion of Charter rights on arrest, and their purposive interpretation. The risks of false confessions that may follow a lack of legal advice, and wrongful convictions that can flow from this, loom large.

 Janine Benedet. Amending Section 33.1: Extreme Intoxication and Sexual Assault. (2022) 80 C.R. (7th) 71. (WLC – LSM members can request a copy).

The new s. 33.1 applies to the same category of offences that the old provision did: general intent offences that contain an element of “an assault or any other interference or threat of interference by a person with the bodily integrity of another person.” This would mean all levels of assault and sexual assault, manslaughter and uttering threats. Other general intent offences would have access to the defence of extreme intoxication without restrictions, while those charged with specific intent offences such as murder and theft can still invoke the standard common law intoxication defence.

Family Law

Manitoba (Director of Child and Family Services) v. M.K. and C.J.O., 2022 MBQ 175: Fate of a child apprehended at birth from her mother. Agency is seeking a permanent order of guardianship so it can place child for adoption with foster parents. Parents of child are of African origin. Mother’s previous two children were also apprehended at birth and placed with the same foster family who adopted them. Dunlop, J. found child was in need of protection when he was apprehended, but the Agency failed in its treatment of the mother. Permanent order of guardianship only option available at this point in time. Order made with significant conditions.

Wright v. Wright, 2022 MBQB 174: Issues of spousal support and division of family property in a long term marriage. Parties have had major financial downtowns since separation. Petitioner (wife) stayed home and cared for children; respondent (husband) built his career and business during the marriage. Leven, J. orders indefinite spousal support at the low end of the scale, but at a reduced rate for one year. Property will be divided equally with a generous amount of time to pay.

Briscoe v. Briscoe, 2022 MBQB 173: Assessment of costs following a hearing to set aside a protection order. Petitioner/respondent is self-represented. Reference to previous decision of Thomson, J. re costs for SRL, Penner v. McCutcheon, 2019 MBQB 109 at para. 14. Applicant’s case had no merit; order for costs for $4,000 all inclusive.

Wilson v. Wilson, 2022 MBQB 172: Final order issued in November 2021 resolved most issues; issues for trial were child support for a specified period; spousal support, if any; and payment of any arrears. Petitioner is an independent contractor and collects business income, not employment income. Respondent has salaried employment as well farming income. Significant analysis of the case law on support.

Esler v Busch, 2022 MBQB 171: Family proceeding began in 2015. Parties were not married so The Family Maintenance Act applied. Respondent filed answer in 2016 requesting spousal support, which was not mentioned in the petition. No significant activity between 2018 and 2021; petitioner moved to dismiss the action. Master ruled that the litigation about spousal support could be dismissed for delay but the litigation about family property could continue. Leven, J. disagreed – the entire litigation is dismissed.

C.M.D. v. S.T., 2022 MBQB 166: Primary focus of decision is mobility of children. Other issues are care and control, decision making authority, income, child support, spousal support and whether protective relief should be granted. Parties are not married, relatively short term relationship. Father lives in Alberta, mother lives with children in Manitoba. Thorough review of financial disclosure, with imputation of income (mother) and non-taxable benefits grossed up and added to father’s income for child support purposes. Extensive discussion and analysis of assessment report prepared for the court.

J.P. v. C.F.S. of Central Manitoba, 2022 MBQB 161: Applicant seeks records relating to charge of child abuse. Agency will be requesting that her name be placed on the Child Abuse Registry. Applicant requests records from various agencies including RCMP records, child’s school disciplinary reports, child’s health records. Antonio, J. orders any records directly related to the abuse charges must be produced in unredacted form.

Corbett v. Corbett, 2022 MBQB 160: Reference re Family Property Act. Long term marriage, very comfortable lifestyle. Reference includes each party’s furnishings, disposal of a family trust which included a cottage and its equipment, value of family home, debts owed to parties by their children and a prepaid vacation.

D.L. v. ANCR, 2022 MBQB 109: Respondent seeks to have applicant’s name registered on the Manitoba Child Abuse Registry. Applicant submits that Agency has not proven abuse. Victim was applicant’s foster child. Agency has burden of proof on a balance of probabilities. Antonio, J. found evidence was insufficient to satisfy Court.

Georgialee Lang. Appeal Court Considers Role of Foster Parents and Customary Care Arrangements. CanLII Connects, August 27, 2022. Case comment on M.L. v. Dilico Anishinabek Child and Family Care, 2022 ONCA 240.

Labour and Employment Law

DHRW Electrical Projects GP v. The International Brotherhood of Electrical Workers, Local Union 2085 et al., 2022 MBQB 168: Application for judicial review of two decisions of a labour arbitrator for being denied procedural fairness and that the decisions are unreasonable. Applicant contends that the Union’s members performed electrical work negligently, resulting in a large number of deficiencies. Issue is over the responsibility for the cost to repair these deficiencies. Grievance was referred to an arbitrator for final and binding arbitration. Application dismissed.

Oluwafifehan Ogunde. The Labour Mobility and Fair Registration Practices Act 2022: A Brief Commentary. 2022 CanLIIDocs 1681.

Saskatchewan’s provincial government, in its growth plan for the 2020-2030 decade, has outlined as a goal the addition of 100,000 jobs. In furtherance of this goal, the government introduced The Labour Mobility and Fair Registration Practices Act (“the Act”) on April 6, 2022, with the intent of attracting skilled labour to Saskatchewan from within and outside Saskatchewan.  According to the provincial government, the Act will reduce barriers to working in the province, and also assist employers in filling jobs across key sectors of the Saskatchewan economy.  The aim of this article is to briefly highlight and discuss the provisions of the Act, particularly in the context of prevalent labour market issues.

Wills, Trusts & Estates

Estate of Swanlund v. Lester, 2022 MBQB 167: Master’s report on family property accounting. Petitioner and respondent had separated after cohabiting since 2005 but petitioner passed away before report was completed. Assets include Swanlund home, RRSPs, stock portfolio, and several other accounts. Petitioner provided comprehensive account statements determining which assets were shareable and which were not. Respondent’s financial disclosure is incomplete. Costs to the petitioner at Class II tariff.

Estates, Trusts & Pensions Journal, Vol. 41, No. 4, August 2022

Suzana Popovic-Montag. Playing It Safe: How to Proceed as Executor When a Will may be Invalid. (LSM members can request a copy.)

M. Jasmine Sweatman and Kimberly A. Whaley. Incapable and Capable Rights: The Rights of Adults in Vulnerable Circumstances – Sledgehammer v. Swiss Army Knife. (LSM members can request a copy.)

Legislation

Federal

BILLS – 44TH PARLIAMENT, 1ST SESSION

Bill Number

Title

Latest Activity

S-10

An Act to give effect to the Anishinabek Nation Governance Agreement, to amend the Sechelt Indian Band Self-Government Act and the Yukon First Nations Self-Government Act and to make related and consequential amendments to other Acts

Royal assent received

C-14

An Act to amend the Constitution Act, 1867 (electoral representation)

Royal assent received

C-19

An Act to implement certain provisions of the budget tabled in Parliament on April 7, 2022 and other measures

Royal assent received

C-24

An Act for granting to Her Majesty certain sums of money for the federal public administration for the fiscal year ending March 31, 2023

Royal assent received

C-25

An Act for granting to Her Majesty certain sums of money for the federal public administration for the fiscal year ending March 31, 2023

Royal assent received

C-28

An Act to amend the Criminal Code (self-induced extreme intoxication)

Royal assent received

C-11

An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts

At second reading in the Senate

C-21

An Act to amend certain Acts and to make certain consequential amendments (firearms)

At consideration in committee in the House of Commons

S-236

An Act to amend the Employment Insurance Act and the Employment Insurance Regulations (Prince Edward Island)

At report stage in the Senate

C-5

An Act to amend the Criminal Code and the Controlled Drugs and Substances Act

At consideration in committee in the Senate

S-5

An Act to amend the Canadian Environmental Protection Act, 1999, to make related amendments to the Food and Drugs Act and to repeal the Perfluorooctane Sulfonate Virtual Elimination Act

Senate bill awaiting first reading in the House of Commons

S-6

An Act respecting regulatory modernization

At second reading in the House of Commons

C-297

An Act to amend the Canada Elections Act (Indigenous languages)

Outside the Order of Precedence

C-29

An Act to provide for the establishment of a national council for reconciliation

At second reading in the House of Commons

C-245

An Act to amend the Canada Infrastructure Bank Act

Bill defeated

C-226

An Act respecting the development of a national strategy to assess, prevent and address environmental racism and to advance environmental justice

At consideration in committee in the House of Commons

C-224

An Act to establish a national framework for the prevention and treatment of cancers linked to firefighting

At consideration in committee in the House of Commons

C-228

An Act to amend the Bankruptcy and Insolvency Act, the Companies’ Creditors Arrangement Act and the Pension Benefits Standards Act, 1985

At consideration in committee in the House of Commons

Provincial

REGULATIONS

Number

Title

Date Registered

117/2022

31 Aug 2022

118/2022

31 Aug 2022

eLex July 2022

Table of Contents

NewsSubstantive LawLegislation
Court Notices &
Practice Directions
Administrative LawFederal
Discipline DigestsCivil LitigationProvincial
New Library ResourcesConstitutional Law 
Book ReviewsCriminal Law 
Family Law 
 Labour and Employment Law 
 Wills, Trusts & Estates 

News


From P.E.I.’s Court of Appeal: R. v. Skye View Farms Ltd. et al., 2022 PECA 1. River flooded and dead fish were found. Fisheries officers collected water and soil samples from a farmer’s field abutting the river. What is the proper test to apply for a s.8 Charter infringement? Interpretation of s. 49(1) (inspection) and s. 49.1 (investigation) of the Fisheries Act as well as degree of privacy a commercial farmer can reasonably expect.

Court Notices & Practice Directions

All COVID-19 Notices and Practice Directions are available here.

Court of Queen’s Bench

Practice directions

Provincial Court


Law Society of Manitoba Discipline Digests

The Law Society of Manitoba v. Murray 2022 MBLS 7


New Library Resources

New in Print

A Practical Guide to Distribution Agreements – “Because distribution agreements cover a diverse range of products and are applicable across the commercial sector, A Practical Guide to Distribution Agreements is essential reading for anyone providing or purchasing goods for distribution. It not only includes an in-depth discussion of the numerous complex issues that can arise in distribution agreements, but also provides step-by-step guidance through the elements of a proper distribution contract – from the parties and the structure, to the scope of the agreement.”

Canadian Tort Law, 12th Edition – “When Canadian Tort Law was first published in 1972, it became the first treatise on the law of torts in Canada. The twelfth edition continues the standard of excellence achieved by each previous edition. As the treatise most commonly cited by the Supreme Court of Canada and other Canadian courts, Canadian Tort Law has greatly influenced the development of tort law in Canada. The text has been updated and in places substantially re-written to reflect changes in tort law in the past few years”

The Law of Unincorporated Associations in Canada – “Unincorporated associations include everything from political parties, sports associations and trade unions, to religious associations and social clubs. Despite the critical role that many of these organizations play in Canadian society, Stephen Aylward explains that, “[s]trictly speaking, unincorporated associations do not exist in the eyes of the law.” Unlike partnerships and corporations, unincorporated associations are not governed by any specific legislation and, as a result, this area of the law has developed primarily through the courts and the application of the law of contract, agency and trusts. In The Law of Unincorporated Associations in Canada, Aylward takes this patchwork quilt of authorities and creates a synthesized manual that lawyers can rely on when advising clients in this space.”

The Construction of Statutes, 7th Edition – “Part art, part science – that’s the essence of effective statutory interpretation. And understanding that balance is precisely the kind of insight you’ll glean from this latest edition of the industry-leading resource, The Construction of Statutes. This is a volume that no lawyer can afford to be without: knowing how to read and apply statutes, and to construct sound arguments regarding statutory interpretation, is a critical skill to possess, regardless of specialty or area of practice. This seventh edition offers a comprehensive and up-to-date examination of the rules and principles governing statutory interpretation, including the latest cases and developments.”

New Online Titles

Available in the Library Resources section of the Member’s Portal

From Emond’s Criminal Law Series

Indigenous People and the Criminal Justice System, 2nd Edition

“Indigenous people are the most over-represented population in Canada’s criminal justice system. Their experiences within the system are interwoven with issues of colonialism and discrimination. Indigenous People and the Criminal Justice System, 2nd Edition, examines these issues and their impact to provide lawyers and judges with a deeper understanding of this area of the law. “


Book Reviews

Review taken from the Canadian Law Library Review, Vol. 47 Issue 2

Reviewed by Kim Clarke, Bennett Jones Law Library University of Calgary

Millennial Leadership in Law Schools: Essays on Disruption, Innovation, and the Future. Edited by Ashley Krenelka Chase. Gretzville, N.Y.: William S. Hein, 2021. xxi, 218 p. Includes references. ISBN 978-0-8377-4136-9 (softcover) US$99.00

“One often struggles to find connections between works in collections of essays. That is not the case with this book. Its narrow focus on millennials and the repetition of themes of their collaborative nature, technological leaning, and ability to relate to law students (most of whom are millennials) provides a smooth flow between the essays.”


Substantive Law


Administrative Law

Stadler v. St. Boniface/St. Vital (Director), 2022 MBCA 56: Dispute over when a disabled individual receiving income assistance must apply for federal retirement or old age benefits. First dispute was when the appellant turned 60 – CA ruled he did not have to apply for benefits until age 65 (2020 MBCA 46). In this matter he wishes to delay applying until age 70. Appeal is based on the following questions of law: Did the Board err in confirming the decision to suspend income assistance benefits pending confirmation he had applied for OAS/GIS; Did the Board err in determining that it does not have jurisdiction to review the constitutionality of its own legislation. Appeal dismissed.

Pensions/Constitutional Law: Tribunal Jurisdiction re Constitutional Issues; s.15. Supreme Advocacy: Court of Appeal Decision of the Week, June 22, 2022. Comment on Stadler v. St. Boniface/St. Vital (Director).

Paul Daly. The Ages of Administrative Law, Public Law Conference, University College Dublin, July 2022. 2022 CanLIIDocs 1400.

In this paper, I tell the story of the administrative state from two perspectives in a tale spanning three distinct periods. One perspective is that of the structure of the state, which is focused on the entities created to carry out legislative policy. The other is the perspective of judicial review of administrative action. This is the story of how the courts came to oversee the administrative state.


Civil Litigation

British Columbia (Attorney General) v. Council of Canadians with Disabilities, 2022 SCC 27: Issue of whether an organization can maintain an action via public interest standing.

Per Wagner C.J. (Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. concurring):

[3] In this appeal, the Council of Canadians with Disabilities (“CCD”) seeks public interest standing to challenge the constitutionality of certain provisions of British Columbia’s mental health legislation. CCD originally filed its claim alongside two individual plaintiffs who were directly affected by the impugned provisions. The individual plaintiffs discontinued their claims, leaving CCD as the sole plaintiff. CCD sought public interest standing to continue the action on its own.

[4] The Attorney General of British Columbia (“AGBC”) applied for dismissal of CCD’s action on a summary trial. He argued that the lack of an individual plaintiff was fatal to CCD’s claim for public interest standing because, without such a plaintiff, CCD could not adduce a sufficient factual setting to resolve the constitutional issue. In response, CCD filed an affidavit in which it promised to adduce sufficient facts at trial. The Supreme Court of British Columbia granted the AGBC’s application, declined to grant CCD public interest standing, and dismissed CCD’s claim. The Court of Appeal allowed CCD’s appeal and remitted the matter to the Supreme Court of British Columbia for fresh consideration. The AGBC appeals that decision.

[5] For the reasons that follow, I would dismiss the appeal, but grant CCD public interest standing, with special costs in this Court and in the courts below.

Henderson v. The Manitoba Public Insurance Corporation, 2022 MBCA 57: Appeal by defendant MPI of dismissal of motion relating to the availability of the remedy for damages. Plaintiff is arguing breach of contract and/or negligent advice over purchase of motor vehicle insurance. Issues are: Is MPI liable for either breach of contract or negligence; if liability is found, what is the appropriate remedy; quantification of damages, if entitled. Motion judge’s role is to determine the essential character of the dispute; trial judge has the jurisdiction to determine the action (i.e. liability). Appeal dismissed.

6191763 Manitoba Inc. et al. v. 5801916 Manitoba Ltd., 2022 MBQB 82: Competing motions for summary judgment over oral contract dispute. Plaintiff and defendants negotiated an oral agreement to develop a piece of property. After hearing the evidence (both affidavit and live) Lanchbery, J. determined a trial was necessary.

Rempel v. Gentek, 2022 MBQB 128: Motion by defendant to dismiss plaintiff’s wrongful dismissal action for delay (Rule 24.02(1)). Issue of whether three or more years have passed without a “significant advance” in the action. Governing test set out in Buhr v. Buhr, 2021 MBCA 63. McCarthy, J. finds that the preparation and filing of the pre-trial brief was a significant step and therefore, constituted a significant advance. Motion dismissed.

CB Dinners Inc. v. J. Brandt Enterprises (2013) Ltd., 2022 MBQB 126: Dispute over the purchase of a refurbished long-haul trick. Plaintiff seeks damages equal to the aggregate costs incurred to address the engine failure and other repairs. Plaintiff assumed two year warranty on sales invoice referred to the entire truck, not just the replaced “engine inframe”. Issue of contractual interpretation. Kroft, J. finds that the plaintiff has not established on the evidence that the defendant is responsible for the damage.

Gzebowski v. Ogwal, 2022 MBQB 121: Application to determine the value of a property jointly owned by the parties, so that the applicants can buy out the respondent’s interest. Greenberg, J. must determine approximately how much each party contributed; neither party has complete documentation. Parties had hoped to sell the property but there was no interest in it. Matter had been ongoing for several years. Court sets the amount owing, applicants are awarded costs at the Tariff amount (Class III).

Knutson Building Ltd. v. Winnipeg Environmental Remediations Inc. et al, 2022 MBQB 119: Motion for dismissal for long delay (Rule (24.02(1)). Issues of whether the appeal should be deemed abandoned; whether fresh evidence should be permitted; whether the claim should be dismissed for long delay; and whether the court should exercise discretion to ensure justice is done. Plaintiff’s lawyer was dealing with personal and professional problems during the matter. Appeal brief was filed two weeks later than the rules allowed. Martin, J. revived the appeal. Application to admit fresh evidence denied. Claim dismissed for long delay. Court does not exercise discretion to revive it.

Ostrowski v. 4445211 Manitoba Ltd. o/a Tan FX et al., 2022 MBQB 112: Plaintiff seeking judgment for amount representing deposits she had paid for the purchase of a tanning salon. Defendant’s position is that the defendants were entitled to retain the deposits. Issue of contractual interpretation. Summary judgment is appropriate in this case where facts are agreed to. Plain reading of contract allows defendant to retain deposit but must return remaning funds to plaintiff.

Capital Commercial Real Estate Services Inc. v. Bibeau, 2022 MBQB 105: Matter between two parties who disagree on an oral contract. Plaintiff claims defendant agreed to pay him $300,000; defendant says it was $200,000. Parties had extensive business relationship, which was why there was no written agreement. Plaintiff put forth several documents defendant would have reviewed. Grammond, J. found no consistency between the documents such that the defendant could have misunderstood the fee. Claim dismissed.

McIntyre v. Potter, 2022 MBQB 103: Motions to add a group of third parties to a matter. Test is set out in Loeppky et al v. Taylor McCaffrey LLP et al., 2019 MBQB 59. Also considered Vale v. Schwartz et al., 2021 MBQB 46. Plaintiffs sued two sets of defendants in contract and tort, but filed a notice of discontinuance against the second set of defendants. Plaintiffs also signed a release, releasing the second set of defendants from all liability. Motions granted.

Supel v. Cunningham, 2022 MBQB 96: Claim in defamation. Plaintiff sued defendant for an injunction and damages; defendant was noted in default. Plaintiff moved for judgment, and defendant moved to set aside the noting of default so she could file a defence. Motion denied. Matter proceeded to default judgment hearing. Defamation was via social media posts. Analysis reviewed Crookes v. Newton, 2011 SCC 47, Grant v. Torstar Corp., 2009 SCC 61, and Rainy River (Town) v. Olsen, 2017 ONCA 605. Martin, J. awarded general damages of $25,000, aggravated damages of $10,00 and punitive damages of $10,000 plus special damages of $262.50; costs of double Tariff A, Class 2, plus full disbursements.

Ostrowski v. Dubois, 2022 MBQB 95: Defendant seeks order that plaintiff’s claim be dismissed due to delay. Action started when plaintiff sued defendants for breach of contract for money he had lent her. Defendant claims monies advanced were a gift, not loans. Parties executed a settlement agreement in May 2012. Analysis of Queen’s Bench rules 24.02(1), 24.02(1)(a), 24.02(1)(e) and 24.01, all centering around “long delay”. Motion dismissed.

Stewart v. 6551450 Manitoba Ltd. et al; 6551450 Manitoba Ltd. v. Spence, 2022 MBQB 84: Litigation involving two claims related to efforts to sell a parcel of land. One claim is a dispute over a loan made between Stewart and 6551450 MB (“655”); other claim is between 655 and Peguis First Nation for breaching fiduciary and contractual duties. Stewart loaned 655 $600,000 as noted in meeting minutes and a promissory note but no loan agreement. 655 claimed there was no loan. Harris, J. found there was enough documentary evidence to show there was a loan. Breach of fiduciary duty was over purchase agreement. Deal required approval by the RM to develop a quarry on the parcel of land. Harris found no breach; claim dismissed.


Constitutional Law

Flette et al. v. The Government of Manitoba et al., 2022 MBQB 104: Four proceedings combined addressing common issues of the constitutional validity of legislation and certain actions of Manitoba dealing with provincial funding of child protection and welfare. Proceedings allege inappropriate conduct by Manitoba relating to the Children’s Special Allowance (CSA). Manitoba directed CFS Agencies within some First Nations authorities to remit the CSA to Manitoba. Some agencies refused. Issue is over whether the allowance should be remitted to the province or if it is to be remitted to the agency for use on behalf of the child. Edmond, J. lays out the context respecting the constitutional challenges (para 61). Analysis of the intermingling of The Budget Implementation and Tax Statutes  Amendment Act, 2020, S.M. 2020 c. 21 (BITSA and CSA.

Criminal Law

R. v. J.J., 2022 SCC 28: Challenge to the constitutionality of ss. 278.92 to 278.94 of the Criminal Code, dealing with the record screening regime for sexual offences. Includes definition of a “record” (para. 34). Crown’s appeal should be allowed, J.’s cross-appeal dismissed, S.’s (complainant) appeal allowed and application judges’ rulings quashed.

Per Wagner C.J. and Moldaver, Karakatsanis, Martin, Kasirer and Jamal JJ.: Before determining the constitutionality of the impugned provisions, it is necessary to interpret them. First, it must be determined what qualifies as a “record” for private record applications, using s. 278.1 as the starting point. The definition of “record” creates two distinct groups: (1) records that fall within enumerated categories; and (2) records that do not fall within the enumerated categories but otherwise contain personal information for which there is a reasonable expectation of privacy. 

Per Brown J. (dissenting in part): The record screening regime enacted under ss. 278.92 to 278.94 of the Criminal Code limits the accused’s rights under ss. 11(c)11(d) and 7 of the Charter. These limits are disproportionate and cannot be demonstrably justified in a free and democratic society. Therefore, ss. 278.92 to 278.94 should be struck down, with immediate effect, but only as those sections relate to the record screening regime. 

Per Rowe J. (dissenting in part): On the merits, there is agreement with Brown J. that ss. 278.92 to 278.94 of the Criminal Code are unconstitutional and of no force and effect except in so far as they apply to the existing s. 276 regime. The legislation restricts the fair trial rights of accused persons by placing limits on how they can conduct the cross‑examination of Crown witnesses and what evidence they can introduce in support of their own defence, even if that evidence is highly probative and not prejudicial to the complainants. 

Per Côté J. (dissenting in part): There is agreement with Brown J. that the record screening regime does not come close to passing constitutional muster. There is also agreement with Rowe J.’s analytical approach in respect of s. 7 of the Charter. However, there is disagreement with the analyses and the conclusions of both the majority and Brown J. on the interpretation of “record” and “adduce”. A narrow interpretation should be preferred.

R. v. Goforth, 2022 SCC 25: Issue of charge to jury and whether it may have misled the jury. Appeal allowed and convictions restored.

Per Wagner C.J. and Moldaver, Karakatsanis, Côté, Rowe and Kasirer JJ.: The jury was properly instructed. The jury charge functionally conveyed the mens rea requirements such that there is no reasonable possibility that the jury would have been confused. The charge also sufficiently recited the evidence about the circumstances that the accused argued prevented him from foreseeing the risk of harm to the children. As well, the jury was well‑equipped to make a common sense assessment of whether failing to provide food or fluids to young children constituted a marked departure from the conduct of a reasonably prudent person.

Per Brown, Martin and Jamal JJ.: The jury charge, when viewed from the functional perspective required by the jurisprudence, did not properly equip the jury to decide the case according to law. However, as no substantial wrong or miscarriage of justice flowed from the deficient instructions, the curative proviso should be applied. There is therefore agreement with the majority that the appeal should be allowed and the convictions restored.

R. v. Hall, 2022 MBCA 59: Sentence appeal; accused argues it is demonstrably unfit as it is harsh and excessive. He received a nine year sentence for four counts of robbery with a weapon. Leave to appeal denied.

R. v. Reimer, 2022 MBCA 55: Appeal of dismissal of application for an order of habeas corpusand mandamus. Accused is charged with two counts of second-degree murder and plans to assert a defence of not criminally responsible. Crown obtained an order for an assessment but it can’t be completed within the 30-day time frame. Assessment order had lapsed by the time came before the application judge; it was dismissed as moot. Appeal dismissed.

R. v. Cleveland, 2022 MBCA 54: Appeal of conviction on a charge of first degree murder. Accused is self represented. Grounds of appeal are the trial judge’s decision to admit similar fact evidence; adequacy of the charge to the jury; and ineffective assistance of counsel at trial. Appeal dismissed.

R. v. Siwicki, 2022 MBCA 53: Appeal of order dismissing appellant’s application re a request to change the venue of sentencing. Critical question is whether a court maintains oversight of such requests. Analysis of interpretation of s. 479 of the Criminal Code. Analysis of concepts of “jurisdiction over the offence” and “jurisdiction over the person”. CA found that Court, not parties, has the final word on where a sentencing hearing will occur.

R. v. F. (J.M.), 2022 MBCA 52: Appeal for conviction for first degree murder, and leave to appeal sentence. Trial judge convicted the appellant based on circumstantial evidence. Issue of admissibility of a cellphone and its contents. Trial judge found a breach of s. 10(b) of the Charter, but after conducting a s. 24(2) analysis, admitted the evidence. CA determined trial judge should have considered the provisions of s. 146 of the YCJA. Conviction and sentence set aside; matter remitted back to trial court for a new trial.

R. v. D.L., 2022 MBQB 127: Accused charged with sexual assault. Complainant testified she was intoxicated and had no memory of the events. Accused testified that she wasn’t overly drunk and there was consent. Court must consider a W.(D.) analysis. Leven, J. found accused was not credible; accused guilty as charged.

R. v. Williams, 2022 MBQB 125: Sentencing decision for conviction of manslaughter. Accused was in a drug-induced psychosis at the time. Many aggravating factors and no mitigating factors in terms of the offence itself. McCarthy, J. takes judicial notice of Gladue factors impacting the offender. None of the case law provided by Crown and defence counsel was directly on point. Due to violent nature of crime, accused is sentenced to life in prison.

R. v. Pierpoint et al., 2022 MBQB 117: Request that indictment be stayed due to delay. Applicants were released after their arrest and have remained out-of-custody throughout the proceedings. Crown argues that the delay was caused by the impact of COVID-19, courts were closed for out-of-custody trials for five months. Both parties provided an extensive factual underpinning relevant to the court’s consideration. Determination that the systemic impact of the pandemic is an exceptional circumstance, and that this is a complex case also giving rise to exceptional circumstances. Application dismissed.

R. v. D.J.S., 2022 MBQB 116: Sentencing decision for conviction of one count of sexual assault. Rempel, J. explained the difficulties in determining a fair and just sentence. Complainant was 14 and on the autism spectrum; accused was 23 and diagnosed with schizophrenia. Review of role of sentencing, including Gladue and Ipeelee factors. Primary consideration must be given to the objectives of deterrence and denunciation. Crown is seeking a sentence of five years less pre-sentence credit. Defence argues five years would be crushing to the accused due to his mental illness and ability to receive treatment. They argue two years less a day plus a significant period of probation would be appropriate. Court imposed a period of incarceration of three years and six months plus ancillary orders.

R. v. P.K., 2022 MBQB 107: Application to terminate a SOIRA order under s. 490.015(1)(b) of the Criminal Code. Accused was required to be registered for a period of 20 years. Onus is on the accused to satisfy the requirements for termination on the balance of probabilities. Keyser, J. sets out the test as found in R. v. D.D., 2020 BCCA 169. Order terminated.

R. v. Muskego, 2022 MBQB 101: Accused charged with possession of a prohibited weapon, unlawful storage of a firearm and intentionally discharging a firearm. Trial raises the issue of false confessions. Consideration of R. v. Pearce (M.L.), 2014 MBCA 70. Accused found guilty of discharging a firearm; other charges withdrawn.

R. v. A.C., 2022 MBQB 99: Trial for charges of assault, assault with a weapon and sexual assault between domestic partners. Assaults took place over many years; complainant had difficulty determining exact dates. Leven, J. considers R. v. Barton and R. v. W.(D) in his analysis. Accused found guilty of sexual assault, common assault, and not guilty of assault with a weapon.

R. v. Parker, 2022 MBQB 66: Sentencing decision after guilty plea for possession of a loaded prohibited firearm, breach of a weapons prohibition order and assault. Accused committed offences while under the influence of various drugs. He was released on a strict curfew and enrolled in a treatment program on his own initiative. Crown is seeking a total sentence of 42 months imprisonment; defence seeks a total sentence of two years less a day, conditionally. Overarching principle is proportionality. Drug addiction is both an aggravating and mitigating factor. Suche, J. considers numerous cases on sentencing both for and against imprisonment. Court determines a conditional sentence following by three years probation will be effective.

R. v. Mamula, 2022 MBPC 34: Application for a stay of proceedings due to delay. Total delay is 33 months and 25 days. Crown argues that but for the COVID pandemic, the trial would have occurred in September 2020. Defence argues that the Crown failed to take reasonable steps to mitigate the delay. Devine, P.J. finds that the court and the Crown did take mitigating steps; application dismissed.

R. v. Shamrat, 2022 MBPC 33: Application to stay proceedings due to delay. Trial has been adjourned and rescheduled six times, due to restrictions during the pandemic. Arrest was on September 7, 2019. Applicant has been out of custody since his arrest. Total delay is 33 months and 21 days. Delay by defence amounts to 53 days. Analysis of other jurisdictions’ responses to the impact of the pandemic to trial schedules and whether six adjournments counts as “exceptional” and a “discrete event”. Carlson, P.J. finds delay attributable to exceptional circumstances amounts to 24 months.

R. v. S.A., 2022 MBPC 28: Sentencing decision re guilty plea for distribution of intimate images. Extensive canvas of treatment of other offenders from different jurisdictions, as well as two from MBCA. Deterrence and denunciation are the primary sentencing objectives. Both aggravating and mitigating factors to take into consideration. Heinrichs considered a Conditional Sentence Order but determined the aggravating factors warranted a custodial sentence. Sentence of nine months in custody and a two year order of supervised probation.

R. v. Shuvera, 2022 MBPC 27: Sentencing decision for one count of dangerous driving causing bodily harm. Accused pleaded guilty. Complainant received serious injuries from the collision. Review of authorities indicates a sentencing range of no jail to significant jail. Custodial sentence of eight months followed by two years of supervised probation.

R. v. Dew, 2022 MBPC 26: Trial of accused charged with luring based on text communications with a 15 year old. Only issue is whether the communication constituted the offence of luring. Explanation of operation and purpose of the offence of luring set out in R. v. Legare, 2009 SCC 56. Accused found guilty.

R. v. Genaille, 2022 MBPC 25: Voir dire decision re application to admit co-accused’s hearsay statement for truth. Accused Richard provided a video statement to the police denying accused Genaille’s involvement. Crown did not seek to tender the comments at trial. Application dismissed; threshold reliability has not been established.

Cristin Schmitz. Ottawa Proposes Narrower Self-Induced Extreme Intoxication Defence to Violence to “Fill the Legal Gap”. The Lawyer’s Daily, June 20, 2022.

Ryan Clements. Cross Country Noteup – Criminal Appeals. CanLIIConnects. Short summaries of criminal appeals from all jurisdictions published on a monthly basis.

Steve Coughlan. R. v. McKenzie: Continuing Confusion on Common Law Powers, (2022) 77 C.R. (7th) 330. (WLC – LSM members can request a copy.)

In most ways the result in McKenzie[2022 MBCA 3]  is unremarkable. Police observed a known gang member who was known to carry weapons and who seemed to be concealing one at that moment, detained him, found the weapon, and he was convicted. Once the accused’s challenge on appeal to the trial judge’s findings that underlay the relevant legal tests failed, there was no other plausible result than that the detention and search would be found to be lawful. At the same time, the case illustrates the confusion inherent in common law powers such as investigative detention and search incident to investigative detention. Some aspects of this are commented on by the Manitoba Court of Appeal, while others are demonstrated by the decision.


Family Law

A.A.O. nka T.L.K. v. N.O.O. et al., 2022 MBCA 58: Respondent appeals order granting petitioner sole custody, setting child and spousal support, and apportioning daycare expenses. Key to the sole custody order was that the respondent had been charged criminally with aggravated assault of an infant in her care. Family law orders are entitled to considerable deference absent an error in principle, a significant misapprehension of the evidence or an award that is clearly wrong. None of those apply; appeal dismissed.

C.E.S. v. S.O.S., 2022 MBQB 120: Issue of the allocation and form of parenting time petitioner is to have with the parties’ daughter. Petitioner wants equal time; respondent says current arrangement, limited time and supervised, should remain the same. Complex family history; petitioner made claims to Child and Family Services resulting in abuse investigations of the respondent. Agency determined that children were at risk of harm with petitioner, instead. Thomson, J. orders minor adjustments to support paid under the interim orders and current parenting arrangements remain.

Lukianchuk v. Lukianchuk, 2022 MBQB 115: Motion to rescind a variation order filed pursuant to Rule 37.11(1). Petitioner (wife) was in the middle of changing counsel when the order was filed. Respondent (husband) asked for arrears to be set at $0.00. No one disclosed that Maintenance Enforcement Program had issued a creditor statement of account stating that there was an enforceable balance of arrears of child support owed by the husband in the amount of $64,415.68. Analysis of petitioner’s actions show she did not proceed “promptly”. Application dismissed.

Chen v. Ma, 2022 MBQB 114: Issue re child support as provided in a written agreement made between the parties in 2016. Daycare expenses not included in consent final order and divorce judgment but included in agreement. Parties are to share the expense on a 50/50 basis. Issue is whether it should be gross daycare expenses or net (after deduction for expenses under the Income Tax Act). Thomson, J. rules that the plain meaning of the agreement means the net expense, agreeing with the defendant.

Blanchard v. Maxwell, 2022 MBQB 113: Dispute over child support, timing and location of weekly exchanges and imputation of income. Parties had an interim court order for child support. Mother wished to make changes to pick-up/drop-off due to difficulties of current arrangement; father did not want to make any changes. Mother had detailed proposal for alternatives, father did not. Leven, J. imputed income for both parties to arrive at new child support award of $812/month, plus arrears.

CFS Western MB v. M.L.K. and T.D.R., 2022 MBQB 106: Agency seeks a permanent order for a child apprehended in 2019. Mother’s father and father’s sister seek guardianship (separately). Mother and father oppose order sought by Agency, and want the child returned to them. Child is Indigenous; Abel, J. takes into consideration the provisions of An Act respecting First Nations, Inuit and Métis Children Youth and Families, S.C. 2019 c. 24 which has a more expansive list of factors to be considered when determining the best interest of a child. Neither parent is able to provide adequate care at this time. Discussion of whether a permanent order, a temporary order or an alternate placement order would be best.

Trojnar v. Trojnar, 2022 MBQB 102: Motion to set aside a variation order for spousal support. Order had been pronounced after two lengthy JADR sessions. Issue over a term that the lump sum spousal support payments could be used as a deduction on the petitioner’s tax returns for two years. He later discovered he could not obtain the tax refunds he anticipated. Motion pleaded “common mistake”, and also relied on Queen’s Bench Rule 59.06(2)(a). Motion dismissed.

Wright v. Wright, 2022 MBQB 97: Master’s decision on disputed property issues. Contested issues included vehicles, valuation of a family-controlled small business corporation, and RRSPs. Master Patterson commented on the lack of evidence for parties’ respective positions as jeopardizing a desired outcome.

Stephanie Dickson, Melanie Battaglia. Child Support for Adult Children and Children with a Disability: The Impact of ODSP, the Disability Tax Credit, RDSP and RESP. (2022) 40 C.F.L.Q. 169 (WLC – LSM members may request a copy.)

In this article, we provide a summary of the primary types of public benefits, tax credits and social assistance programs available to the family when supporting an adult “child” with a disability. In particular, we discuss the Ontario Disability Support Program (“ODSP”), the Federal Disability Tax Credit (“DTC”), Registered Disability Savings Plan (“RDSP” — as distinguished from the Registered Education Savings Plan, “RESP”), and Ontario’s Passport Funding. 

Georgialee A. Lang. An Exhausting and Ruinous Parenting Case: J.M. v. E.M. The Lawyer’s Daily, June 21, 2022. Case comment on 2022 ABCA 49, a decision involving family violence, a mother who fled to Germany, and contempt of court charges.


Labour and Employment Law

Terry Davidson. Ontario Court Rules on Teachers’ Digital Communications Being Intercepted by Principal. The Lawyer’s Daily, June 24, 2022. Comment on Elementary Teachers Federation of Ontario v. York Region District School Board,2022 ONCA 476 on “reasonable expectation” of privacy afforded to employees.

Wills, Trusts & Estates

Canada (Attorney General) v. Collins Family Trust, 2022 SCC 26: Interpretation of attribution rules in s. 75(2) and inter-corporate dividend deduction in s. 112(1) of the Income Tax Act. Tax Court of Canada interpreted s. 75(2) differently than was commonly accepted by tax professionals and CRA. Reassessment of the trusts’ returns led to unanticipated tax liability. Trusts petitioned for the equitable remedy of rescission.

Per Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ.: Taxpayers should be taxed based on what they actually agreed to do and did, and not on what they could have done or later wished they had done. A determination that equity can relieve a tax mistake is barred by a limiting principle of equity and by principles of tax law stated in Canada (Attorney General) v. Fairmont Hotels Inc.2016 SCC 56, and Jean Coutu Group (PJC) Inc. v. Canada (Attorney General)2016 SCC 55, Accordingly, the trusts are barred from obtaining rescission of the transactions.

Per Côté J. (dissenting): The appeal should be dismissed. Rescission is, in strictly limited circumstances, an available remedy that can be used to unwind transactions that were undertaken on the basis of a mistaken assumption, even if permitting it would effectively relieve the taxpayer from payment of unexpected taxes. 

Re Estate of Marjorie Doreen Pelletier; Ratt v. Pelletier et al., 2022 MBQB 123: Application for an order that a testamentary document executed by the deceased be declared fully effective. Document is a codicil that was not incompliance with the Wills Act. Review of the circumstances leading to the writing of the codicil, and discussion of the competence of the deceased when it was written. Steps a court must follow set out in Schrof v. Schrof et al., 2017 MBQB 51. Analysis of whether suspicious circumstances exist. Chartier, J. finds for the applicant.

Nicol v. Nicol, 2022 MBQB 111: Defendant was executor of the estate of his mother. Plaintiff, his sister, did not accept payment of her share of the residue in 2005, as she was on social assistance and did not want it to affect her benefits. Defendant eventually divided the remaining residue to the other beneficiaries, including himself. Plaintiff now asks for an order for summary judgment alleging that the defendant committed a breach of trust and fraud. Abel, J. finds that the plaintiff has not met her evidential burden that there is no genuine issue for trial and that the defendant did not commit fraud. He allows the plaintiff to make further submissions at another hearing. Aubrie Girou, Catherine Bunio. B.C. Bill-21 and Electronic Wills: Progressive or Problematic? (2022) 41 Est. Tr. & Pensions J. 152. (LSM members may request a copy).


Legislation


Federal

BILLS – 44th PARLIAMENT, 1st SESSION
Bill NumberTitleLatest Activity
S-10An Act to give effect to the Anishinabek Nation Governance Agreement, to amend the Sechelt Indian Band Self-Government Act and the Yukon First Nations Self-Government Act and to make related and consequential amendments to other ActsRoyal assent received
C-14An Act to amend the Constitution Act, 1867 (electoral representation)Royal assent received
C-19An Act to implement certain provisions of the budget tabled in Parliament on April 7, 2022 and other measuresRoyal assent received
C-24An Act for granting to Her Majesty certain sums of money for the federal public administration for the fiscal year ending March 31, 2023Royal assent received
C-25An Act for granting to Her Majesty certain sums of money for the federal public administration for the fiscal year ending March 31, 2023Royal assent received
C-28An Act to amend the Criminal Code (self-induced extreme intoxication)Royal assent received
C-11An Act to amend the Broadcasting Act and to make related and consequential amendments to other ActsAt second reading in the Senate
C-21An Act to amend certain Acts and to make certain consequential amendments (firearms)At consideration in committee in the House of Commons
Bill NumberTitleStatus
S-236An Act to amend the Employment Insurance Act and the Employment Insurance Regulations (Prince Edward Island)At report stage in the Senate
C-5An Act to amend the Criminal Code and the Controlled Drugs and Substances ActAt consideration in committee in the Senate
S-5An Act to amend the Canadian Environmental Protection Act, 1999, to make related amendments to the Food and Drugs Act and to repeal the Perfluorooctane Sulfonate Virtual Elimination ActSenate bill awaiting first reading in the House of Commons
S-6An Act respecting regulatory modernizationAt second reading in the House of Commons
C-297An Act to amend the Canada Elections Act (Indigenous languages)Outside the Order of Precedence
C-29An Act to provide for the establishment of a national council for reconciliationAt second reading in the House of Commons
C-245An Act to amend the Canada Infrastructure Bank ActBill defeated
C-226An Act respecting the development of a national strategy to assess, prevent and address environmental racism and to advance environmental justiceAt consideration in committee in the House of Commons
C-224An Act to establish a national framework for the prevention and treatment of cancers linked to firefightingAt consideration in committee in the House of Commons
C-228An Act to amend the Bankruptcy and Insolvency Act, the Companies’ Creditors Arrangement Act and the Pension Benefits Standards Act, 1985At consideration in committee in the House of Commons
S-9An Act to amend the Chemical Weapons Convention Implementation ActSenate bill awaiting first reading in the House of Commons
S-4An Act to amend the Criminal Code and the Identification of Criminals Act and to make related amendments to other Acts (COVID-19 response and other measures)Senate bill awaiting first reading in the House of Commons

Provincial

The House adjourned on June 1, 2022. The 4th Session of the 42nd Legislature will reconvene on Wednesday, September 28, 2022 at 1:30 p.m.

Proclamations

ChapterTitle     (provisions)Date in forceDate signedProclamation
SM 2022, c. 11The Court of Appeal Amendment and Provincial Court Amendment Act Part 11 Jan 20236 Jul 2022Proclamation
SM 2022, c. 16The Legislative Security Amendment Act whole Act7 Jul 20226 Jul 2022Proclamation
SM 2017, c. 13The Emergency Medical Response and Stretcher Transportation Amendment Act clause 2(a) insofar as it repeals the definitions “air ambulance”, “ambulance operator”, “grant” and “municipality”clauses 2(b) and (c)sections 3 and 6 to 11clause 13(1)(c)subsections 13(2) to (4)sections 14 and 151 Jul 202222 Jun 2022Proclamation
SM 2021, c. 15The Regional Health Authorities Amendment Act (Health System Governance and Accountability) section 74 insofar as it enacts sections 79.2 and 79.3sections 83, 92 and 98clauses 134(a) and (b)1 Jul 202222 Jun 2022Proclamation
SM 2021, c. 17The Crown Land Dispositions Act (Various Acts Amended) whole Act1 Jul 202222 Jun 2022Proclamation
SM 2021, c. 24The Credit Unions and Caisses Populaires Amendment Act whole Act1 Jul 202222 Jun 2022Proclamation
SM 2022, c. 11The Court of Appeal Amendment and Provincial Court Amendment Act whole Act except Part 11 Jul 202222 Jun 2022Proclamation
SM 2022, c. 12The Scrap Metal Act whole Act18 Jul 202222 Jun 2022Proclamation

Regulations

NumberTitle Registered Published
71/2022Self-Insured Employers Regulation, amendment23 Jun 202223 Jun 2022
72/2022Scrap Metal Regulation24 Jun 202227 Jun 2022
73/2022Credit Unions and Caisses Populaires Regulation24 Jun 202227 Jun 2022
74/2022Exemption (Credit Unions and Caisses Populaires) Regulation24 Jun 202227 Jun 2022
75/2022Child and Family Services Authorities Regulation, amendment24 Jun 202227 Jun 2022
76/2022Assistance Regulation, amendment24 Jun 202227 Jun 2022
77/2022Assistance Regulation, amendment24 Jun 202227 Jun 2022
78/2022Employees Requiring Ministerial Authorization to Acquire Crown Lands Regulation24 Jun 202227 Jun 2022
79/2022Transportation Infrastructure (General) Regulation, amendment24 Jun 202227 Jun 2022
80/2022Health Authorities and Health Regions Regulation24 Jun 202227 Jun 2022
NumberTitle Registered Published
81/2022Manitoba Health Appeal Board Regulation, amendment24 Jun 202227 Jun 2022
82/2022Sessional Rates for Services Regulation, repeal24 Jun 202227 Jun 2022
83/2022Fees for Emergency Medical Response Services Regulation24 Jun 202227 Jun 2022
84/2022Health Authorities (General) Regulation, amendment24 Jun 202227 Jun 2022
85/2022Hospital Services Insurance and Administration Regulation, amendment24 Jun 202227 Jun 2022
86/2022Personal Care Services Insurance and Administration Regulation, amendment24 Jun 202227 Jun 2022
87/2022Wildlife Fees Regulation, amendment24 Jun 202227 Jun 2022
88/2022Threatened, Endangered and Extirpated Species Regulation, amendment24 Jun 202227 Jun 2022
89/2022Standards of Sound Business Practice Regulation24 Jun 202227 Jun 2022
90/2022Prudential Standards for Credit Union Central of Manitoba Regulation24 Jun 202227 Jun 2022
91/2022General Hunting Regulation, amendment27 Jun 202228 Jun 2022
92/2022Hunting Seasons and Bag Limits Regulation, amendment27 Jun 202228 Jun 2022
93/2022Wildlife Protection Regulation, amendment27 Jun 202228 Jun 2022
94/2022Air Emergency Medical Response System Regulation, amendment29 Jun 202230 Jun 2022
95/2022Land Emergency Medical Response System Regulation, amendment29 Jun 202230 Jun 2022
96/2022Fees in Lieu of Taxes and Related Matters Regulation (2022)30 Jun 202230 Jun 2022
97/2022Tax Rates Regulation (2022)30 Jun 202230 Jun 2022
98/2022Charges Payable by Long Term Care Patients Regulation, amendment30 Jun 202230 Jun 2022
99/2022Agency Mandates Regulation, amendment30 Jun 20221 Jul 2022
100/2022Agency Mandates Regulation, amendment30 Jun 20221 Jul 2022
101/2022Preset Fines and Offence Descriptions Regulation, amendment7 Jul 20227 Jul 2022
102/2022Gas and Oil Burner Regulation, amendment7 Jul 20227 Jul 2022
103/2022Construction Industry Minimum Wage Regulation, amendment7 Jul 20227 Jul 2022
104/2022Student Aid Regulation, amendment7 Jul 20227 Jul 2022
105/2022Prohibited Activities Regulation7 Jul 20227 Jul 2022

eLex June 2022

Table of Contents

NewsSubstantive LawLegislation
Court Notices &
Practice Directions
Administrative LawFederal
Discipline DigestsCivil LitigationProvincial
New Library ResourcesCriminal Law 
Book ReviewsFamily Law 
EventsLabour and Employment Law 

News


Notices

Court Notices & Practice Directions

All Courts Notice – Mask Use and Court Reopening (May 13, 2022)

Queen’s Bench (Masters)

June 9, 2022 Re: COVID-19 Update and New Practices for the Fall of 2022 – prior notices from March 2020 to 2022 currently governing practice before the masters will be replaced by this notice in the fall.

All COVID-19 Notices and Practice Directions are available here.


Discipline Digests

The Law Society of Manitoba v. Fawcett 2022 MBLS 4
The Law Society of Manitoba v. Currie 2022 MBLS 5
The Law Society of Manitoba v. Stern 2022 MBLS 6

New Library Resources

New in Print

  • Remedies in Tort – “five-volume work has a total of 28 chapters that are constantly updated with the most recent guidelines and court decisions.”
  • Widdifield on Executors and Trustees – “a comprehensive exposition of the law relating to the exercise of the duties and prerogatives of the executor or trustee in Canadian law.”
  • The Regulation of Professions – “A comprehensive synthesis of the law relating to the regulation of Canadian professions…reviews both the legislative framework and the significant body of case law that interprets this subject.”
  • The Oppression Remedy – “a critical resource for advising corporations, boards or shareholders and creditors about their rights and duties.”

New Online Titles
available in the Library Resources section behind the Member Portal

On vLEX

  • Fertility: 40 Years of Change  By Maureen A. McTeer – analyses how Canada has responded to the many legal and societal opportunities this foundational reproductive technology has created, such as new types of human relationships; the treatment of infertility; human embryo research; and the revolutionary possibilities for society raised by the combination of reproductive and genetic technologies
  • Every Cyclist’s Guide to Canadian Law – 2nd ed.  By Christopher Waters – provides a comprehensive overview of the Canadian law on bicycles. The book covers rules of the road, purchasing and using bikes, what to do in the case of a crash or a stolen bike, starting up your own cycling club, racing your bike, and much more.
  • Child Victims in Canada’s Justice System By Loree Armstrong Beniuk – a thoroughly researched resource that will be useful for anyone working with or establishing public policy with respect to children who have experienced sexual abuse.
  • Canadian Policing. Why and How It Must Change By Kent Roach – a comprehensive and critical examination of Canadian policing from its colonial origins to its response to the February 2022 blockades and occupations.

Book Reviews

Review taken from the Canadian Law Library Review, Vol. 47 Issue 1.

Smart Contracts: Technological, Business and Legal Perspectives. Edited by Marcelo Corrales Compagnucci, Mark Fenwick & Stefan Wrbka. Oxford, U.K.: Hart Publishing, 2021. 204 p. ISBN 9781509937028 (hardcover) $150.95; ISBN 9781509937035 (PDF) $135.85; ISBN 9781509937042 (EPUB) $135.85.

Reviewed by Susannah Tredwell

“The book consists of eight chapters exploring such areas as data provision and privacy laws, the sharing of healthcare data, and unfair contract terms, and it concludes with a discussion of the future of smart contracts. Since each chapter is written by a different author or authors, there is a certain amount of repetition when it comes to subjects addressing what smart contracts and blockchain are, although the slants do vary. The consensus seems to be that “smart contract” is a bit of a misnomer since smart contracts are generally neither smart nor really contracts.”

Events

Call to the Bar June 16, 2022

The Mass Call to the Bar ceremony is returning to an in person format this year after being conducted virtually for the last two years due to the pandemic restrictions. This year’s distinguished guest speaker is the Chief Justice of Manitoba, the Honourable Chief Justice Richard Chartier.
Members of the profession are invited to attend this ceremony and are asked to contact Lisa Ehnes at lehnes@lawsociety.mb.ca to obtain tickets to sit in the audience or to advise that you would like to participate in the procession at the beginning of the ceremony and be seated in an area set aside for members of the Bar.
Please note that if you wish to participate in the procession, you will be required to wear court robes. If you have any other questions regarding the Call ceremony, please contact Joan Holmstrom at 204-926-2017 or by email at jholmstrom@lawsociety. mb.ca.


Injustices and Miscarriages of Justice Experienced by Indigenous Women
Jun 24, 2022, 12:00 pm – 1:30 pm, MANITOBA BAR ASSOCIATION
For Manitoba Bar Association Members

SPEAKER: SENATOR KIM PATE, INDEPENDENT SENATOR FOR ONTARIO, TERRITORY OF THE ALGONQUIN ANISHINABEG

Three senators are calling for the exoneration of twelve Indigenous women they say endured significant injustices in their interactions with the criminal justice system in a report issued May 16, 2022. The report identifies a number of problematic cases. The lawmakers said the findings in the report are “alarming” and reveal a pattern of systemic racism, misogyny, and abuses of mandatory minimums penalties. Join us as we discuss the report with Senator Kim Pate, which builds a case for a group conviction review and exoneration by the Department of Justice, and calls for the repeal of all mandatory minimums penalties.


See the full list of events on our calendar

Substantive Law


Administrative Law

Keurig Canada Inc. v. Canada (Border Services Agency), 2022 FCA 100: Is it a “coffee maker” or an “electro-thermic appliance”? Appeal of tariff classification of certain goods imported by Keurig. Canadian International Trade Tribunal (CITT) classified it as a “coffee maker” in December 2014. In July 2018, Keurig applied for a refund of duties, claiming it should be classified as “other electro-thermic devices” since it makes tea, hot cholate and other hot drinks besides coffee. Includes a concise description of the Keurig brewing system. Appeal dismissed. No word on whether the Court was offered a demonstration.

McCare Global Healthcare Services Inc. v. The Workers Compensation Board of Manitoba, 2022 MBCA 50: Appeal of judicial review of assessment dispute. Applicant is a health care service provider placement agency. WCB assessed the applicant as the employer of the service providers; applicant claimed that the service providers were independent contractors. WCB Appeal Commission determined that the service providers were workers for the purposes of coverage, and that the applicant was the employer. Judicial review agreed with Appeal Commission (standard of “reasonableness”). Discussion of s.60(2.1) (deemed worker and employer). Appeal dismissed.

Michelle Flaherty and Morgan Teeple Hopkins. Self-Represented Litigants and Active Adjudication: The Duties of Adjudicators. (2022) 35 Can J. Admin. L. & Prac. 177 (WLC – LSM Members can request a copy.)

The work of adjudicators has shifted in the face of increased numbers of self-represented litigants (“SRLs”) in our justice system. Fair and proportionate adjudication has always been expected of decision-makers. However, the current context requires more. One of the guiding principles that arises from the jurisprudence is that decision-makers must recognize and accommodate the SRL’s unfamiliarity with the legal process. It is no longer appropriate for adjudicators to act as passive participants in the hearing. They are now expected to use their role to ensure the hearing process is both fair and accessible to all litigants, including SRLs.


Civil Litigation

Urbanmine Inc. et al v. ELG Metals Inc., 2022 MBCA 51: Appeal concerning the application of s.2(1)(c) of The Tortfeasors and  Contributory Negligence Act on a motion to commence a claim against a third party. Discussion of the history of negligence acts. CA found no error in motion judge’s conclusion that defendants established a prima facie case that they have a statutory right to contribution from the third party. Appeal dismissed.

Wolfe et al v. Taylor et al, 2022 MBCA 48:  Appeal of dismissal of motion for leave to commence a claim in negligence against court-appointed liquidator. Applicant must establish a strong prima facie case before leave will be granted. Appeal dismissed.

7602678 Manitoba Ltd. v. 6399500 Manitoba Ltd., 2022 MBQB 89: Hearing re costs in relation to three previous Orders, instead of in the cause.  Law Society of Manitoba seeks costs in its role as intervenor as a party; its involvement in this matter is over. Review of s. 96 of The Court of Queen’s Bench Act and Queen’s Bench Rules 57.01(1) and (3). Costs are awarded to the Law Society following Class II of Tariff A. Defendant 6399500 is awarded costs at Class III of Tariff A for orders that have been completed.

Fletcher v. Bradbury (MHRC) (No. 2), 2022 MBQB 73: Issue of whether applicant is entitled to access of portions of the Offer or Lease of property held by the Manitoba Housing and Renewal Corporation (MCHR). Applicant requested to view some portions which were redacted. Exception to disclosure is discretionary; public body may refuse disclosure if a reasonable expectation of probable harm is shown. Test is that set out in Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3 (headnotes). MHRC ordered to release the information.

Dennis v. Canada (AG) et al. (No. 2), 2022 MBQB 72: Proceedings under The Class Proceedings Act. Plaintiff filed a class action on behalf of a proposed class of grain producers who sold grain through the Canadian Wheat Board during two crop years (2010-2012). Issue is over regulations passed by the Canadian government increasing the CWB contingency fund cap from $60 million to $200 million. Motion for certification is granted. Proposed Class and Common Issues set out in Appendix A attached to this decision.

Ian Burns. Advance Payments Under Fixed Fee Agreements part of Lawyers` Trust Funds: B.C. Court of Appeal. The Lawyer`s Daily, May 9, 2022. Comment on Law Society of British Columbia v. Guo, 2022 BCCA 154.

Irina Ceric and Jasminka Kalajdzic. Policing Protest via the Civil Law: Class Actions, Injunctions, and the “Freedom Convoy”. (2022) 70 C.L.Q. 247. (WLC – request a copy)

In the aftermath of the so-called Freedom Convoy and the blockades in Ottawa, Windsor, and Coutts, Alberta, crucial questions have emerged about the implication of the use of the civil law to demobilize and criminalize protest movements. Injunctions have long been wielded by governments and corporations against movements for Indigenous and environmental justice, but their invocation by local residents and small businesses against a lengthy and disruptive protest is unusual.

Daniel Escudero. Ontario Court Grants Summary Judgment to Subcontractor after Contractor Breached Trust Condition. The Lawyer’s Daily, June 2, 2022. Comment on Pylon Paving (1996) Inc. v. Beaucon Building Services Inc., 2022 ONSC 3282.


Criminal Law

R. v. Bissonnette, 2022 SCC 23: Challenge to the constitutionality of s. 745.51 of the Criminal Code re punishment that is cruel and unusual by nature. Accused had been sentenced to consecutive 25-year parole ineligibility periods in a case involving multiple first degree murder convictions. Wagner C.J. (Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. concurring):

[3]  More specifically, the question before the Court is whether s. 745.51 of the Criminal Code, R.S.C. 1985, c. C‑46 (“Cr. C.”), which was introduced in 2011 by the Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act, S.C. 2011, c. 5, s. 5, is contrary to ss. 7 and 12 of the Charter. The impugned provision authorizes the imposition of consecutive parole ineligibility periods in cases involving multiple murders. In the context of first degree murders, the application of this provision allows a court to impose a sentence of imprisonment without eligibility for parole for a period of 50, 75, 100 or even 150 years. In practice, the exercise of the court’s discretion will inevitably result in imprisonment for life without a realistic possibility of parole for every offender concerned who has been convicted of multiple first degree murders. Such a criminal sentence is one whose severity is without precedent in this country’s history since the abolition of the death penalty and corporal punishment in the 1970s.

[7] The provision challenged in this case allows the imposition of a sentence that falls into this latter category of punishments that are cruel and unusual by nature. All offenders subjected to stacked 25‑year ineligibility periods under s. 745.51 Cr. C. are doomed to be incarcerated for the rest of their lives without a realistic possibility of being granted parole. The impugned provision, taken to its extreme, authorizes a court to order an offender to serve an ineligibility period that exceeds the life expectancy of any human being, a sentence so absurd that it would bring the administration of justice into disrepute.

R. v. Safdar, 2022 SCC 21: Decision delivered orally by Brown, J. At the conclusion of evidence and submissions, the accused applied for a stay based on a breach of his right to be tried within a reasonable time. The trial judge heard the application while preparing his decision on the trial proper. He reserved his decision and granted the stay. Court of Appeal set aside the stay order.

We agree with the Court of Appeal that K.G.K. is dispositive of the central issue in this appeal. For the purposes of determining whether the total delay exceeded the Jordan presumptive ceiling, the time between the conclusion of evidence and argument, and the bringing of the s. 11(b) application in this case, should not have been counted (K.G.K., at paras. 31 and 33R. v. J.F.2022 SCC 17 , at para. 27).

R. v. Sullivan, 2022 SCC 19: Also known as Sullivan and Chan. Heard with R. v. Brown, 2022 SCC 18 (below). Constitutionality of s. 33.1 of the Criminal Code in defence of extreme self-induced intoxication akin to automatism. Court of Appeal held that S. and C. were entitled to raise the defence of automatism. S’s convictions were set aside and acquittals entered; new trial ordered for C. Appeals dismissed. Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.

[5] In R. v. Brown2022 SCC 18 , released concurrently with the reasons for judgment in these appeals, I conclude that s. 33.1 violates the Charter and is of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982. That conclusion is equally applicable to the Crown’s appeals in the cases at bar.

[6] As respondent, Mr. Sullivan has raised an issue relating to the character and force of a s. 52(1) declaration of unconstitutionality issued by a superior court. He argued before us that the trial judge had been bound by a previous declaration by a superior court judge in the province that held s. 33.1 to be of no force and effect. The issue raised by Mr. Sullivan provides an opportunity to clarify whether a declaration made under s. 52(1) binds the courts of coordinate jurisdiction in future cases due to the principle of constitutional supremacy, or whether the ordinary rules of horizontal stare decisis apply. As I shall endeavour to explain, stare decisis does apply and the trial judge was only bound to that limited extent on the question of the constitutionality of s. 33.1.

R. v. Brown, 2022 SCC 18: Defence of extreme intoxication. Constitutionality of s. 33.1 of the Criminal Code. Appeal allowed, acquittal restored. Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.

[3] Mr. Brown’s appeal before this Court turns on the circumstances in which persons accused of certain violent crimes can invoke self‑induced extreme intoxication to show that they lacked the general intent or voluntariness ordinarily required to justify a conviction and punishment. Similar matters are at the heart of the Crown appeals in R. v. Sullivan and R. v. Chan, for which judgments are rendered simultaneously with this case (R. v. Sullivan2022 SCC 19 ) (the “Sullivan and Chan appeals”).

[4] These are not drunkenness cases. The accused in each of these appeals consumed drugs which, they argued, taken alone or in combination with alcohol, provoked psychotic, delusional and involuntary conduct, which are reactions not generally associated with drunkenness. As I note below, there is good reason to believe Parliament understood that alcohol alone is unlikely to bring about the delusional state akin to automatism it sought to regulate in enacting s. 33.1 of the Criminal Code, R.S.C. 1985, c. C‑46. … I specifically leave intact the common law rule that drunkenness, absent clear scientific evidence of automatism, is not a defence to general intent crimes, including crimes of violence such as sexual assault.

[13] The violations of the rights of the accused in respect of the principles of fundamental justice and the presumption of innocence occasioned by s. 33.1 are grave. Notwithstanding Parliament’s laudable purpose, s. 33.1 is not saved by s. 1 of the Charter. The legitimate goals of protecting the victims of these crimes and holding the extremely self-intoxicated accountable, compelling as they are, do not justify these infringements of the Charter that so fundamentally upset the tenets of the criminal law. With s. 33.1, Parliament has created a meaningful risk of conviction and punishment of an extremely intoxicated person who, while perhaps blameworthy in some respect, is innocent of the offence as charged according to the requirements of the Constitution.

R. v. J.F., 2022 SCC 17: Right to be tried within a reasonable time – whether the presumptive ceilings established in Jordan apply to retrial delay. Further explanation of the Jordan framework. Appeal allowed. Per Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ.:

[2] This appeal affords the Court an opportunity to decide whether the Jordan framework applies when a motion for a stay of proceedings for unreasonable delay is brought in the course of a retrial. Two questions arise: (1) After a new trial is ordered, can an accused file a s. 11(b) motion for a stay of proceedings based on delay in the accused’s first trial? (2) Do the presumptive ceilings established in Jordan apply to retrial delay?

[4] The ceilings set in Jordan apply to retrial delay. The framework established in that case protects the right of an accused to be tried within a reasonable time pursuant to s. 11(b), and that provision equally guarantees this right to an accused who is tried a second time. Although it is generally accepted that retrials must be prioritized when scheduling hearings and that they will be shorter than first trials, I do not think it is appropriate to adopt different presumptive ceilings for retrials. The Jordan framework is flexible enough to be adapted to the specific circumstances of an accused who is retried.

Côté J. (dissenting):

[81]  This appeal concerns the interaction between the culture shift introduced by this Court since R. v. Jordan2016 SCC 27 , [2016] 1 S.C.R. 631, the presumptive ceilings within which an accused must be brought to trial, and the situation — not contemplated by Jordan — in which a new trial is ordered. We must propose a pragmatic solution that respects the right of an accused to be tried within a reasonable time while also remaining true to the principles established in Jordan when analyzing delay in the context of a retrial.

[84] Of course, the Court’s purpose in Jordan was not to provide second‑rate justice to accused persons, but rather to ensure that their constitutional right to be tried within a reasonable time, guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms, is respected. Where the prosecution breaches its duty and infringes this fundamental right, a stay of proceedings is the only possible remedy (R. v. Rahey1987 CanLII 52 (SCC) , [1987] 1 S.C.R. 588, at p. 614; Jordan, at paras. 35 and 47R. v. Cody2017 SCC 31 , [2017] 1 S.C.R. 659, at para. 24).

R. v. Kinnavanthong, 2022 MBCA 49: Appeal of conviction after a jury trial for the offences of manslaughter, aggravated assault and discharge of a firearm, and appeal of designation as a dangerous offender and the imposition of an indeterminate sentence. Grounds for appeal are that trial judge erred in finding no air of reality to the defence of self-defence; instructing the jury to disregard his submission that it was an accident; and imposing an indeterminate sentence. Both appeals dismissed.

R. v. A.A.J.T., 2022 MBCA 47: Request for leave to appeal sentence for conviction of sexual interference, child pornography offences and more. Accused claims he received a sentence that was harsh and excessive and that the judge did not analyze or properly apply the principle of totality. Leave to appeal granted, appeal dismissed.

R. v. Wood, 2022 MBCA 46: Application for leave to appeal sentence for conviction of manslaughter. Argues that sentence is inconsistent with principle of parity and errors of trial judge caused him to impose an unfit sentence. Sentencing judges are to be afforded wide latitude. Vulnerability of the deceased important factor in determining sentence. Leave to appeal granted, appeal dismissed.

R. v. D.A.B., 2022 MBCA 45: Appeal by Crown of acquittal of sexual assault causing bodily harm and choking to overcome resistance. Crown’s right to appeal restricted to questions of law alone. Appeal dismissed.

R. v. Pietz, 2022 MBQB 93: Application for stay of proceedings due to violation of Charter rights by police conduct. Accused argues that his s.7, 9 and 10(b) rights were violated by the police and requests a stay of proceedings. Bond, J. finds that rights were not violated, and even if they were, a stay would not be the appropriate remedy. Application dismissed.

R. v. C.P.R., 2022 MBQB 71: Sentencing for accused who was convicted of several sexual assault and child pornography offences. Harris, J. noted there is little guidance on sentences based on the facts in this case (para 39). Review of cases decided since Friesen. Court finds an extremely high level of moral blameworthiness of the accused. Appropriate sentence is 14 years, but reduced to 10 when taking into respect the principle of proportionality.

R. v. Unrau, 2022 MBQB 67: Appeal of conviction in provincial court for dangerous driving, driving while impaired and driving over .08. Appeal based on errors in law over several issues; standard of review is correctness. Significant analysis of whether s.11(b) delay was calculated correctly. Appeal dismissed.

R. v. K.S.S., 2022 MBPC 22: Sentencing decision for intimate partner aggravated assault. Accused has drug addiction issues and faces immigration consequences. Partner was an unwilling participant and required a witness warrant. Aggravating factors include impact to partner and her children, it was committed in the family home; mitigating factors include lack of prior record, rehabilitative efforts and expression of remorse. Martin, P.J. finds that a sentence of three years incarceration is appropriate.

R v J.O., 2022 MBPC 19: Hearing to determine admissibility of certain evidence. Criteria for admissibility set out in s. 276 of the Criminal Code. Some is admitted, while other evidence is not. Rolston, P.J. leaves room to readdress this during trial.

R. v. McLachlan,2022 MBPC 13: Sentencing decision for conviction of sexual interference, examining the impact of R. v. Friesen on case law pre-dating that decision. Discussion of sentencing principles under s. 718 of the Criminal Code. Primary consideration is to the objectives of denunciation and deterrence, as offence was against a vulnerable female child under the age of 18. Offending is on the very high end of the spectrum (para. 24). Martin, P.J. finds an appropriate sentence is 13 years’ incarceration for sexual interference and a concurrent sentence of 10 years for invitation to sexual touching.

Amanda Jerome. Court Affirms Jury Should Not be Given “Traditional Caution” on Exculpatory Eyewitness Evidence: Counsel”. The Lawyer’s Daily, May 9, 2022. Comment on R. v. Grant, 2022 ONCA 337.

Tim Quigley. “Sadly, No RIP for Starting-Point Sentences”. (2022) 75 C.R. (7th) 306 (WLC – LSM members can request a copy).

In a recent article, Paul Moreau made a compelling case for the abolition of starting-point sentences. Sadly, in R. v. Parranto, a majority of the Supreme Court rejected the arguments to rid our sentencing process of these pernicious approaches. Indeed, as I shall argue below, the Court has shown more than mere acceptance of starting points as a form of appellate guidance to sentencing judges. Rather, the Court’s position reinforces both starting-point sentencing and the imposition of long prison sentences. This is despite strong pronouncements in favour of appellate deference in sentencing review and the role that starting-points may play in that review.


Family Law

B.J.T. v. J.D., 2022 SCC 24: Child custody – child was found in need of protection from mother. Maternal grandmother and child’s father submitted competing parenting plans.  Hearing judge awarded custody to the grandmother; majority of the Court of Appeal reversed the decision and awarded custody to the father. Appeal allowed, the hearing judge made no legal errors that warranted appellate intervention and that decision was entitled to deference. Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.

[2] At the conclusion of the appeal, we unanimously allowed the appeal. We set aside the decision of the Court of Appeal and restored the order of the hearing judge awarding the permanent custody and guardianship to the grandmother pursuant to s. 38(2)(e) of the Child Protection Act. Under the terms of the hearing judge’s final disposition, the grandmother was immediately entitled to the custody and guardianship of the child in P.E.I., and the Director was required to return him to the grandmother … at the expense of the Director.

Barendregt v. Grebliunas, 2022 SCC 22: Appeal of relocation order, where father admitted additional evidence on appeal. Primary residence of children was awarded to the mother at trial; appeal court overturned based on additional evidence. Analysis of the Palmer test for the admission of new evidence and whether it can be applied in a family law case. Karakatsanis J. (Wagner C.J. and Moldaver, Brown, Rowe, Martin, Kasirer and Jamal JJ. concurring):

[3] In my view, the test in Palmer v. The Queen1979 CanLII 8 (SCC) , [1980] 1 S.C.R. 759, applies whenever a party seeks to adduce additional evidence on appeal for the purpose of reviewing the decision below, regardless of whether the evidence relates to facts that occurred before or after trial. Appellate courts must apply the Palmer criteria to determine whether finality and order in the administration of justice must yield in service of a just outcome. The overarching consideration is the interests of justice, regardless of when the evidence, or fact, came into existence.

[4] In cases where the best interests of the child are the primary concern, the Palmer test is sufficiently flexible to recognize that it may be in the interests of justice for a court to have more context before rendering decisions that could profoundly alter the course of a child’s life. At the same time, finality and order are critically important in family proceedings, and factual developments that occur subsequent to trial are usually better addressed through variation procedures.

[5] In this case, the Court of Appeal for British Columbia held that Palmer did not strictly govern the admission of new evidence on appeal. Instead, it applied a different test and admitted the evidence. It erred in doing so.

Côté J. (dissenting):

[193] … I disagree with my colleague’s application of Palmer to the facts of this case. Appellate courts that strictly apply the Palmer test tend to focus too narrowly on the potential for further evidence to distort the appellate standard of review rather than properly focusing on the best interests of the child as the overriding consideration. The Palmer test must be applied flexibly in all cases involving the welfare of children. My colleague recognizes this well‑established principle, yet her application of Palmer is devoid of flexibility.

[194] On a proper application of Palmer, I would admit the new evidence and remand the appeal to the trial court for reconsideration of the children’s best interests in light of the new information regarding the father’s financial situation and the condition of the West Kelowna home. The effect of holding otherwise would be to relocate 2 children 1,000 km away from their father based on an inaccurate picture of reality.

Metis Child, Family and Community Services v. C.P.R. et al, 2022 MBCA 40: Private guardianship dispute. Motion by Peguis First Nation CFS for leave to intervene in the appeal of an order of guardianship in relation to A.D.R. Reference made to new federal Indigenous child and family services legislation, An Act Respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24. Motion granted.

 Swerid v. Swerid, 2022 MBQB 94: Variation proceeding over post-majority support for two children with no relationship with the payor parent. Discussion of the onus of proving “child of the marriage”. Analysis of the effect of the change in circumstances. Respondent had onus of proving that the children were children of the marriage after their 18th birthday. Mirwaldt, J. found she did not meet that. Final Order varied ending child support at children’s 18th birthday; various respondent must repay child support overpaid; petitioner owes education costs he agreed to in separation order.

 Mann v. Mitchell, 2022 MBQB 92: Motion by respondent for various forms of relief in high conflict proceedings, including security for costs, an order that petitioner be declared a vexatious litigant, an order of sole custody as well as others. Petitioner’s motion for recalculation of child support payments, change in location of periods of care and control and other relief, is dismissed. Both parties are self-represented. Trial dates have been postponed several times due to the pandemic, but are now set for February 2023. Motion dismissed.

 Gerrow v. Minty, 2022 MBQB 91: Trial to determine child support and amount of income to impute to mother (respondent). Parents had switched from mother having majority parenting time to shared parenting time (50-50). Mother manages property for her father, as well as a few private clients. Leven, J. imputes income at minimum wage for full time work. Father claims increased costs, e.g. cost of gas, child care but his evidence is sparse. After set-off, child support ordered at $520/month.

Johnson v. Miazga, 2022 MBQB 90: Application for summary judgment to divide family property based on the terms of a purported agreement reached between the parties at a case conference. Respondent claims there was no “meeting of the minds” due to medical incapacity, even though she was represented by senior counsel at the time. Secondary issue of a request for a variation of drop-off and pick-up of children. Analysis of whether summary judgement is an appropriate method, whether the respondent was temporarily incapacitated, and whether the agreement reached was unconscionable. Petersen, J. granted summary judgment.

Pedersen v. Pedersen, 2022 MBQB 86: Respondent’s motions opposing confirmation of Master’s Report and request to admit fresh evidence. Master’s Report will be adjudicated at trial in the fall. Thomson, J. relies on the test (would the evidence, if presented at trial probably have changed the result; and could the evidence have been obtained before trial by the exercise of reasonable diligence) in dismissing the respondent’s motion.

Wright v. Wright, 2022 MBQB 78: Request by respondent for leave to amend answer to petition for divorce to request an unequal division of family property. Bar for unequal division of property is a high one, relying on Moskal v. Costco Wholesale Corporation, 2015 MBCA 108. Motion granted.

 Esler v. Busch, 2022 MBQB 76: Decision re request by petitioner for dismissal due to delay of an answer (not a petition) filed on behalf of respondent. Petition originally filed in September 2015; respondent filed an answer in December 2016. Pre-trial held in April 2018, and a consent order pronounced in August 2018. No further activity on the file. Significant discussion of Rules 24.01 and 24.02 and how they apply in family proceedings. Master Patterson found that there was a delay that was not to be condoned, as per Hryniak. Husband is successful.

Lesy v. Lesy, 2022 MBQB 68: Application for grandparent access under The Child and Family Services Act. Grandparents want substantial contact with their granddaughter; father wants no contact, or in the alternative, limited supervised visits. Grandparents initially brought application in Saskatchewan which was unsuccessful. Analysis of the doctrine of res judicata as well as other grandparent access cases. Grandparents were successful in receiving some supervised in-person access as well as telephone or video contact.

  Cristin Schmitz. SCC Rules Biological Ties Carry “Minimal Weight” in Determining Child’s Best Interests for Custody. The Lawyer’s Daily, June 3, 2022. Comment on 2022 SCC 24.


Labour and Employment Law

Hussey v. Bell Mobility Inc., 2022 FCA 95: Appeal over the application of the reasonableness standard in a wrongful dismissal case. Appellant appeals dismissal of an application for judicial review of an adjudicator appointed under the Canada Labour Code. Adjudicator found she had been unjustly dismissed but declined to reinstate her. Instead, she was awarded compensation as well as partial costs. Respondent employer cross appeals on the issue of costs. Statutory provision at issue is ss.242(4). Analysis of the common law approach versus the fixed term approach to unjust dismissal (para 25-31). Both appeal and cross-appeal dismissed.

Labour Arbitration Cases are now on CanLII! CanLII is pleased to announce the completion of a project to scan and add the decisions that were published in Labour Arbitration Cases (LAC) to CanLII.org!


Legislation


Federal

Recent Activity

Bill Long TitleStatus
S-249An Act respecting the development of a national strategy for the prevention of intimate partner violenceAt second reading in the Senate
C-25An Act for granting to Her Majesty certain sums of money for the federal public administration for the fiscal year ending March 31, 2023House of Commons bill awaiting first reading in the Senate
C-24An Act for granting to Her Majesty certain sums of money for the federal public administration for the fiscal year ending March 31, 2023House of Commons bill awaiting first reading in the Senate
C-19An Act to implement certain provisions of the budget tabled in Parliament on April 7, 2022 and other measuresAt third reading in the House of Commons
S-236An Act to amend the Employment Insurance Act and the Employment Insurance Regulations (Prince Edward Island)At consideration in committee in the Senate
C-23An Act respecting places, persons and events of national historic significance or national interest, archaeological resources and cultural and natural heritageAt second reading in the House of Commons
S-233An Act to develop a national framework for a guaranteed livable basic incomeAt second reading in the Senate
S-246An Act respecting Lebanese Heritage MonthAt second reading in the Senate
S-248An Act to amend the Criminal Code (medical assistance in dying)At second reading in the Senate
C-246An Act to amend the Constitution Act, 1867 (representation in the House of Commons)At second reading in the House of Commons
C-241An Act to amend the Income Tax Act (deduction of travel expenses for tradespersons)At second reading in the House of Commons
C-240An Act to amend the Income Tax Act (donations involving private corporation shares or real estate)At second reading in the House of Commons
S-206An Act to amend the Criminal Code (disclosure of information by jurors)At report stage in the House of Commons

Provincial

The House adjourned on June 1, 2022. The 4th Session of the 42nd Legislature will reconvene on Wednesday, September 28, 2022 at 1:30 p.m.

Bills Passed

Bill no. (session)TitleChapter
Bill 2 (42-4) The Public Services Sustainability Repeal ActSM 2022, c. 9
Bill 7 (42-4) The Police Services Amendment Act (Enhancing Independent Investigation Unit Operations)SM 2022, c. 10
Bill 8 (42-4) The Court of Appeal Amendment and Provincial Court Amendment ActSM 2022, c. 11
Bill 9 (42-4) The Scrap Metal ActSM 2022, c. 12
Bill 15 (42-4) The Drivers and Vehicles Amendment and Highway Traffic Amendment ActSM 2022, c. 13
Bill 16 (42-4) The Financial Administration Amendment ActSM 2022, c. 14
Bill 17 (42-4) The Family Law Act, The Family Support Enforcement Act and The Inter-jurisdictional Support Orders Amendment ActSM 2022, c. 15
Bill 18 (42-4) The Legislative Security Amendment ActSM 2022, c. 16
Bill 19 (42-4) The Beneficiary Designation (Retirement, Savings and Other Plans) Amendment ActSM 2022, c. 17
Bill 21 (42-4) The Highway Traffic Amendment and Manitoba Public Insurance Corporation Amendment ActSM 2022, c. 18
Bill 23 (42-4) The Reducing Red Tape and Improving Services Act, 2022SM 2022, c. 19
Bill 26 (42-4) The Officers of the Assembly Act (Various Acts Amended)SM 2022, c. 20
Bill 27 (42-4) The Highway Traffic Amendment Act (Alternative Measures for Driving Offences)SM 2022, c. 21
Bill 29 (42-4) The Mennonite College Federation Amendment ActSM 2022, c. 22
Bill 30 (42-4) The Police Services Amendment and Law Enforcement Review Amendment ActSM 2022, c. 23
Bill 31 (42-4) The Minor Amendments and Corrections Act, 2022SM 2022, c. 24
Bill 32 (42-4) The Victims’ Bill of Rights Amendment ActSM 2022, c. 25
Bill 33 (42-4) The Municipal Assessment Amendment and Municipal Board Amendment ActSM 2022, c. 26
Bill 34 (42-4) The City of Winnipeg Charter Amendment and Planning Amendment ActSM 2022, c. 27
Bill 35 (42-4) The Commemoration of Days, Weeks and Months and Related Repeals and Amendments ActSM 2022, c. 28
Bill 37 (42-4) The International Child Support and Family Maintenance (Hague Convention) ActSM 2022, c. 29
Bill 41 (42-4) The Child and Family Services Amendment ActSM 2022, c. 30
Bill 44 (42-4) The Employment Standards Code Amendment Act (Minimum Wage)SM 2022, c. 31
Bill 205 (42-4) The Filipino Heritage Month ActSM 2022, c. 32
Bill 223 (42-4) The Ukrainian Heritage Month ActSM 2022, c. 33
Bill 227 (42-4) The Turban Day ActSM 2022, c. 34
Bill 228 (42-4) The Eating Disorders Awareness Week ActSM 2022, c. 35
Bill 234 (42-4) The Drug-Related Death Bereavement Day ActSM 2022, c. 36

Proclamations

ChapterTitle (provisions)Date in forceDate signedProclamation
SM 2009, c. 15The Regulated Health Professions Actrepeal of The Registered Psychiatric Nurses Act (S.M. 1999, c. 38)clause 252(2)(c)1 Jun 202218 May 2022Proclamation
SM 2021, c. 48The Reducing Red Tape and Improving Services Act, 2021section 51 Jun 202227 Apr 2022Proclamation

eLex May 2022

Table of Contents

NewsSubstantive LawLegislation
In the NewsAdministrative LawFederal
Court Notices &
Practice Directions
Civil LitigationProvincial
Discipline DigestsCriminal Law 
New Library ResourcesFamily Law 
 Book ReviewsLabour and Employment Law 

News


In the News

Office of the Superintendent of Financial Institutions Canada released its 2022-2025 Strategic Plan.

Replace “Interns” with “Articling Students”. 5 Tips from a Law School Librarian for Assigning Research Projects to Interns by Matthew Flyntz, in the ABA Journal.
“As a law school reference librarian, I field a lot of questions from law students working at internships, externships and summer jobs. Over the years, I’ve seen some recurring issues with the research assignments given to law students, and I thought it might be helpful to discuss some of them here.”

Sarah Nixon. Two Visions of Reconciliation. (2022) 27 Appeal 42
“Reconciliation has become a popular and contentious term in Canadian politics, media, jurisprudence, and legal education. In this paper, I explore what is at stake in our approach to reconciliation by contrasting two prevailing forms. First is a form pursued in Canadian jurisprudence which I refer to as “reconciliation to Crown sovereignty.” !e second is a form advocated by numerous scholars and Indigenous leaders which I call “reconciliation as treaty.”


Court Notices & Practice Directions

All COVID-19 related Notices and Practice Directions are available here.

Court of Queen’s Bench

Notice – April 12, 2022 – Amendments to the Court of Queen’s Bench Rules

Provincial Court

Notice – Resumption of JJP Dockets in the communities of Cross Lake, Gods Lake Narrows, Nelson House, Norway House, Oxford House, Shamattawa and Split Lake (April 19, 2022)


Discipline Digests

The Law Society of Manitoba v. Fiorino, 2022 MBLS 3

New Library Resources

New in Print

Employment Law during a Pandemic, Sean J. O’Donnell, LL.B.

“Developed in response to the pandemic, this handy resource acts as a one-stop reference for employment lawyers, litigators, in-house counsel and other human resources professionals who are charged with dealing with the employment law issues that have arisen during and as a result of the COVID-19 crisis. Author O’Donnell, an experienced employment lawyer, is particularly well-positioned to offer general guidelines and best practices for addressing those issues, as well as to provide insight into the relevant legislation and case law related to COVID-19. Featuring case studies based on the COVID-19 outbreak, this text includes answers to the most pressing employment- and pandemic-related questions that lawyers and other professionals are grappling with at this time.”

Annotated Firearms Act & Related Legislation, 5th Edition, Jonathan Keene Brunet, Solomon Friedman, Fady Mansour

“This comprehensive guide to firearms legislation in Canada provides you with a fully annotated version of the Firearms Act, Part III and other related sections of the Criminal Code, and relevant provisions of the National Defence Act and the Youth Criminal Justice Act.”

New eResources

Will Week April 2022

Will Week is a week-long series of free public events to bring awareness to the importance of wills and estate planning. Seminars start Tuesday April 26, 2022. Visit the Library’s events calendar for session and registration information.

The event is a collaboration between the Manitoba Bar Association, The Winnipeg Foundation and the Public Guardian and Trustee. To learn more about Will Week, visit the Winnipeg Foundation website.

Visit our virtual book display here to see all the print and digital resources the library has to offer.

Journals Update

New articles from the following journals are now available for Law Society members upon request.

  • Canadian Family Law Quarterly
  • Intellectual Property Journal
  • Journal of Parliamentary and Political Law
  • McGill Law Journal
  • National Journal of Constitutional Law
  • Ottawa Law Review

For a pdf copy of these or other legal journal articles email us at library@lawsociety.mb.ca.


Book Reviews

Review taken from the Canadian Law Library Review, Vol. 47 Issue 1. This title is available in e-book format to LSM members as part of Emond Publications’ Criminal Law Series,

Search and Seizure. By Nader Hasan et al. Toronto: Emond, 2021. xxix, 729 p. Includes table of cases and index. ISBN 978-1-77255-635-3 (softcover) $159.00.

“The common law and case consideration reveal that search and seizure are pivotal elements of the criminal justice system. The foreword notes that these concepts are at the heart of that system. The authors, who bring academic, Crown counsel, and defence experience to this project, have assembled an impressive amount of pertinent detail for examination”

“Throughout this publication, the authors have incorporated many highlighted areas, titled Practice Points, that are designed to appeal to those who will be using this resource as a tool for court. Accordingly, this publication has considerable value for those learning about the state of search and seizure in Canada. It is also an asset for the practicing lawyer seeking to stay abreast of case law in this complex area.”

Events

Step into the Estate Plan for a Complex Family

Zoom Video Conference
May 24, 2022
12:00 PM – 01:30 PM

The panel, comprised of members of the Society of Trust and Estate Practitioners (“STEP”), will work through a case study featuring a blended family, and discuss spousal agreements and family property claims, structuring an inheritance for a disabled beneficiary, the impact of a beneficiary’s U.S. residency, the use of insurance to supplement or implement an estate plan, the impact of a change in the testator’s domicile, and the importance of an interdisciplinary approach to estate planning.  

PANELISTS: 
Tricia Carver, CPA-CA, CFP, TEP, Insurance Advisor, National Bank Insurance
Christa Walkden, CPA(ND), MST, TEP, CPA-CA, Director – Tax and Estate Planning, The Asper Family
Mariska Loeppky, B. Comm (Hons.), CPA, CA, TEP, CFP, Director, Tax and Estate Planning, IG Wealth Management
Harmanjit Mavi, JD/MBA, TEP, Wills and Estates Lawyer, MLT Aikins LLP
Krista Clendenning, JD, TEP, Wills and Estates Lawyer, Tradition Law LLP
MODERATOR: 
Daniel Watts, JD, TEP, Estate and Trust Consultant, Assante Wealth Management

Please RSVP (PRE-REGISTRATION IS REQUIRED) to the Manitoba Bar Association online at www.cbapd.org. The link to join the meeting will be sent the morning of the meeting.

Substantive Law


Administrative Law

Canada (Attorney General) v. Robinson, 2022 FCA 59: Issue of whether the holder of an inshore fishing license must personally carry out the activities authorized by the licence. Licence holder can apply for permission to substitute another person if they are medically unable to perform the activity, subject to a five-year limit. The department had allowed respondent permission to extend the substitution for longer than five years, but gave notice that 2016 would be the last year. FCA ruled on whether the trial judge adopted the correct standard of review, and then, whether he applied it correctly. Appeal dismissed. (Further comment noted below.)

A Maze in Corn Inc. v. Manitoba Emergency Measures Organization et al, 2022 MBCA 38: Application seeks leave to appeal a decision of the Manitoba Disaster Assistance Appeal Board. Decisions are only allowed with leave of the Court of Appeal and only on a question of law. Applicant raises four grounds of appeal. Leave to appeal granted on the issue of compensable economic loss.

Mark Mancini. The Sunday Evening Administrative Review, Issue #37, April 10, 2022. Comment on Canada (Attorney General) v. Robinson, 2022 FCA 59.


Civil Litigation

McDonald v. Bialowas et al, 2022 MBCA 39: Appeal of decision (2021 MBQB 161) dismissing claim for a declaration that a door in the appellant’s building is governed by, required and compliant with the 1941 National Building Code. Appeal dismissed.

Nguyen v. Winnipeg (City of), 2022 MBCA 33: Issue of whether a judgment was an interlocutory order which requires leave to appeal or if it was a final order, allowing an appeal as of right. Analysis of the difference between the two, in a slip and fall case. Steel, J.A. finds the City is allowed to appeal as of right.

Wilde et al v. The Rural Municipality of Taché et al, 2022 MBCA 31: Appeal of dismissal of application to extend time to commence an action against the respondents for defects in the design and construction of their residence. CA determined that application judge correctly determined that the appellants ought to have known there were foundation problems several years prior to acting on it. Appeal dismissed. 

Group III Diversified Inc v Winnipeg (City of), 2022 MBCA 30: Appeal of order assessing compensation in an expropriation case. Land Value Appraisal Commission (LVAC) assessed compensation of $177,057.75; appellant was seeking $5,749,000. Pfuetzner, J.A. determined reasons from LVAC were deficient such that they did not allow for appellate review. Matter sent back to LVAC for a new hearing in accordance with guidance provided in these reasons.

Winnipeg Condominium Corporation 479 v. Frohlinger, 2022 MBCA 29: Appeal of decision discharging a mortgage held by the appellant against the title to a parking unit. Discussion of development where parties are in a non-arms-length relationship. Court found no reviewable error of fact or law; appeal dismissed.

The City of Winnipeg v. 3177751 Manitoba Ltd., 2022 MBQB 85: Defendant seeks an order disqualifying a law firm (Taylor McCaffrey LLP) from acting for the City of Winnipeg on an expropriation hearing. Defendant claims firm is in a conflict of interest because it had acted for the defendant and some of its affiliates over the last 20 years. Examination of the law of conflict of interest in the legal profession and discussion of “bright line rule”. Motion dismissed.

Winnipeg (City) v. Caspian Projects Inc. et al., 2022 MBQB 81: Resolution of payment of $327,200 found to be a civil bribe. Joyal, C.J.Q.B. determined that it should be treated as damages for breach of trust, payable to the City. Analysis includes caselaw re damages in an amount equivalent to the bribe.

3065448 Manitoba Ltd. v. Bolay, 2022 MBQB 65: Contract dispute. Issue over quality of work as well as length of time to complete the project. Abel, J. determined time was not of the essence, so the lack of a guaranteed completion date was not enough of a factor to allow the plaintiffs to issue a stop-work order. Deficiency in workmanship was repairable, and defendant was willing and able to repair it. Corporation entitled to damages of 75% of the contract, since it had completed 75% of the work; Bolay entitled to damages for repairs recommended by expert report of $21,200.

Merchant Law Group v. Champagne, 2022 MBQB 64: Appeal of small claims court officer’s decision requiring appellant to pay respondent fees, disbursements and costs for legal services in a family law matter on the basis of quantum meruit. Counsel of record moved to withdraw but the family division justice refused the motion, even though the appellant advised that she would be representing herself. No formal contract or retainer drawn up between the parties. Toews, J. finds the hearing officer’s determination constitutes an error of law. Appeal allowed to the extent that the amount of the order be reduced by 70%, roughly the amount of work completed after the appellant’s termination of the relationship.

The Rural Municipality of Macdonald v. Samborski, 2022 MBQB 54: Hearing over penalty for contempt. Defendant refused to obey an interim injunction restraining them from composting on a property, in violation of a municipal by-law. Penalty codified under Queen’s Bench Rule 60.10. Analysis of caselaw on fines for contempt. Suche, J. found a reasonable fine was $5,000 for the defendant Leonard Samborski, $10,000 for Samborski Environmental and $40,000 for costs in favour of the R.M.

J-Kap v. City of Winnipeg, 2022 MBQB 49: Plaintiff sued City of Winnipeg in negligence by issuing a deficient building permit. Plaintiff purchased a house in need of repair and submitted an application with construction drawings that included a new foundation to replace the existing foundation. Building permit allowed for the construction of an addition to the rear of the building but no foundation work. Credibility of plaintiff at issue. City is successful.

Michael Ilg. Markets, Autonomy, & Mistake: The Judicial Control of Standard Form Contracts in a Cyber Age. (2022) 37 B.F.L.R. 229 (WLNC – request a copy).

This article addresses the growth of electronic standard form agreements involving consumers and considers the implications for general principles of contract law. In answer to the potential abuse of electronic standard agreements by technology companies, the Supreme Court of Canada, in Heller v. Uber, significantly expanded the equitable doctrine of unconscionability. 

Paul Ivanoff and Ethan McCarthy. Contract Termination: Considerations in Terminating for Default or for Convenience. 2021 J. Can. C. Construction Law 61. (WLNC – request a copy)

Parties enter into construction contracts with a common goal of building a successful project. Yet industry participants know all too well that hurdles can be encountered during project execution which will challenge the relationship between contracting parties. Many hurdles can be resolved amicably through the mechanisms provided in the contract. However, in certain instances, an owner or contractor may be so dissatisfied with the other party’s performance of their contractual obligations that they may view the relationship as unsalvageable and seek to bring it to an end by terminating the construction contract for default.


Criminal Law

R. v. Dussault, 2022 SCC 16: Issue of accused’s right to counsel before police questioning (s. 10(b) of the Charter). Did police provide accused with a reasonable opportunity to consult counsel, and were they required to provide him with a further opportunity to consult counsel before interrogating him. Appeal dismissed. Per Moldaver J. (Wagner C.J. and Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. concurring):

[3] For reasons that I will explain, in the unique circumstances of this case, I am satisfied that the police were required to provide Mr. Dussault with a further opportunity to consult counsel before questioning him. My reasons for reaching that conclusion, however, differ from those of the Court of Appeal. In my opinion, there were objectively observable indicators that the police conduct in this case had the effect of undermining the legal advice that the lawyer provided to Mr. Dussault during their telephone call. Therefore, even if the call was a complete consultation in its own right, the police were nevertheless required to provide Mr. Dussault with a second opportunity to consult counsel. They failed to do so and thereby breached his s. 10(b) rights. I would dismiss the appeal.

R. v. J.D., 2022 SCC 15: Issue of continuation of proceedings before another judge. Judicial interpretation of s. 669.2(3) of the Criminal Code – rules to follow if a trial judge dies or is unable to continue when no adjudication has been made or verdict rendered. Appeal allowed, convictions and sentences restored. Per Côté J. (Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ. concurring)

[4] With all due respect, I conclude that the Court of Appeal erred in its interpretation and application of s. 669.2. There is no reason to require an inquiry that is not provided for by law where the parties have consented to the filing, in a trial that was commenced again, of a transcript of testimony given at a first trial. Such an inquiry would completely alter the judge’s role, minimize the judge’s ability to assess the transcript of prior testimony and run counter to the presumption of the competence of counsel.

R. v. Gerrard, 2022 SCC 13: Oral reasons dismissing appeal of 13 domestic violence related convictions delivered by Moldaver, J. Trial judge’s reasons show that she instructed herself correctly on the W.(D.) test. Trial judge assessed complainant’s credibility as a direct response to accused’s defence at trial.

R. v. Tim, 2022 SCC 12: Issue of infringement of the right against arbitrary detention under s. 9 of the Charter. Police officer arrested accused based on a mistake of law about the legal status of a substance found in the accused’s vehicle.  Per Wagner C.J. and Moldaver, Côté, Rowe, Kasirer and Jamal JJ.:

[4]  For the reasons that follow, I would dismiss the appeal. The police breached s. 9 of the Charter by arresting the appellant based on a mistake of law about the legal status of gabapentin. They then breached s. 8 of the Charter by searching his person and car incident to the unlawful arrest. … Although all the impugned evidence was “obtained in a manner” that breached the Charter, I would not exclude it under s. 24(2). The Charter breaches were at the less serious end of the scale of culpability and only moderately impacted the appellant’s Charter-protected interests. On the other side of the ledger, the evidence was reliable and essential to the prosecution of serious offences. In my view, weighing these considerations, the admission of the evidence would not bring the administration of justice into disrepute.

Per Brown J. (dissenting)

[104] Taking that into account, and accepting my colleague’s discussion of the other lines of inquiry under R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, I find that admitting the evidence would bring the administration of justice into disrepute. I would therefore allow the appeal, exclude the evidence, and substitute verdicts of acquittal on all charges.

R. v. Stairs, 2022 SCC 11: Issue of whether search of accused’s home was a breach of his s. 8 Charter rights. Recognition of the potential of violating privacy through a warrantless search of a home; is the area sufficiently proximate to the arrest to provide a link. Appeal dismissed: Wagner, C.J. and Moldaver, Rowe, Kasirer and Jamal, J.J.:

[10] Applying the stricter standard to this case, the police, in our view, had reason to suspect that there was a safety risk in the basement living room and that their concerns would be addressed by a quick scan of the room, which was the least intrusive manner of search possible in the circumstances. It follows that Mr. Stairs’ s. 8 Charter rights were not breached, and the drug evidence was properly admitted. Accordingly, we would dismiss the appeal.

Karakatsanis, Brown and Martin, J.J. (dissenting):

[107] Like my colleagues, I conclude that the common law sets too low a bar for searches incident to arrest inside a home. Privacy demands more. When officers seek to search a home for safety purposes — as they did here — the appropriate standard is reasonable suspicion of an imminent threat to police or public safety.

Côté, J. (concurring);

[174] However, in the present case, I would not interfere with the trial judge’s finding that the police were acting in good faith on their understanding of unsettled law. As I have explained, the justificatory standard for and permissible scope of a residential search incident to arrest were unclear at the relevant time. Further, society has a strong interest in the adjudication of a charge involving a large quantity of a highly dangerous and pernicious street drug.

R. v. Moar, 2022 MBCA 36: Accused appeals his conviction for second degree murder and the period of parole ineligibility. Appeal is based on the grounds that the trial judge erred in instructing the jury on intention and intoxication. Analysis of the trial judge’s instructions and the law around jury instructions. Conviction appeal dismissed. Accused argues that the trial judge erred in apply his Gladue factors in determining his sentence. Leave to appeal the sentence granted, but appeal dismissed.

R. v. G.S., 2022 MBCA 35: Accused appeals his convictions for sexual assault with a weapon, choking to overcome resistance and uttering threats. Crown seeks leave to appeal and if granted, appeals the sentence. Accused seeks to admit fresh evidence. Evidence against the accused included an audio file made by the victim during the assault. He seeks to tender opinion evidence of an expert that the audio file was manipulated. Conviction appeal dismissed; leave granted to appeal the sentence, but also dismissed.

R. v. Bunn, 2022 MBCA 34: Accused appeals his conviction for sexual assault; Crown seeks leave to appeal, and if granted, appeals the sentence. Accused argues that the trial judge applied uneven scrutiny in her analysis of his evidence versus the victim, and returned an unreasonable verdict. CA dismissed the convictions appeal. Crown allowed leave to appeal sentence, but appeal dismissed.

R. v. Keating, 2022 MBCA 32: Crown appeal of sentence for break and enter and committing assault, and uttering threats. Sentence was 18 months’ incarceration for first charges, and an additional six months incarceration, concurrent followed by three years’ probation. Crown alleges trial judge erred by underestimating the gravity of the offences and the accused’s moral culpability. Court agrees; new sentence (jointly recommended) of four years’ and six months (concurrent).

R. v. Bordian, 2022 MBQB 83: Trial over charge of attempted murder and aggravated assault. Both the accused and the victim testified with two very different versions of the events. Analysis and consideration of the credibility of the evidence of both parties. Accused acquitted of attempted murder, convicted of aggravated assault.

R. v. C.B., 2022 MBQB 63: Accused pleaded guilty to three counts of mischief and was sentenced to 15 months of supervised probation. He appeals, arguing that the sentencing judge erred in principle and submits that the appropriate sentence is a conditional discharge. Harris, J. found sentencing judge erred by focussing almost exclusively on the offence and its impact on society. Further analysis is required on whether a discharge would not be contrary to the public interest. Appeal allowed.

R. v. Peters, 2022 MBQB 59: Accused charged with sexual assault and failure to comply with an undertaking. Complainant and accused testified. Leven, J. used W.(D.) framework to analyse reasonable doubt. Trial was not an issue of consent; both parties described two different scenarios. Accused found guilty.

Hudson (Re), 2022 MBPC 20: Determination of who will be granted standing in the Inquest into the death of Eishia Hudson. Ms. Hudson was killed by a WPS officer who discharged his firearm. Presumption of inquest is to determine the circumstances relating to the death and determine what, if anything, can be done to prevent similar deaths in the future. Detailed explanation of who will be granted standing, who will not, and why.

R. v. Anobis, 2022 MBPC 17: Accused is charged with assault on a peace officer (x2) and resisting arrest. Evidence of accused and evidence of police officers differ. Evidence includes testimony of accused, police officers, taser report, and video recording provided by the accused. Heinrichs, P.J. observes inconsistencies in all the testimony. Although the judge finds issues with the accused’s evidence, there is a reasonable doubt as to his guilt.

R. v. D.P., 2022 MBPC 16: Accused is charged with possession of a Schedule 1 drug after a traffic stop. Traffic stop was legal; accused claims vehicle was searched without a warrant. Onus on accused to establish on a balance of probabilities that a breach occurred. Evidence of police officers and accused both consistent and logical; however, judge accepts police evidence.

R. v. James, 2022 MBPC 15: Sentence for guilty plea to the offence of manslaughter. This was a violent, unprovoked attack with a knife in a public space. Accused was extremely intoxicated at the time, raising doubt that the Crown could prove he had the intent necessary to support a conviction for murder. Pre-sentence report and a Gladue assessment were filed with the Court. Accused sentenced to 10 years with a one year reduction due to severe Gladue factors.

Application pursuant to section 490(1) of the Criminal Code for detention of things seized, Envelope 28693, 2022 MBPC 14: Police (and counsel) appeared in an ex parte proceeding requesting a detention order pursuant to s. 490(1) of the Criminal Code. Report had been filed twice but was rejected and no order had been made. Issues of jurisdiction, effect of failure to file the report in seven days, and whether a detention order should be made in this case. Krahn, A.C.J. issued the order.

R. v. Rosin, 2022 MBPC 10: Ruling on admissibility of community impact statement (CIS), pursuant to s. 772.2(1) of the Criminal Code. Canadian Centre for Child Protection (C3P) wished to provide a statement which would provide general information about online luring and reference case law and information gathered from reported offences and comments from those who have been victimized. Defense argues the statement contains information that is inadmissible at law. Lord, A.C.P.J. references other cases both in Manitoba and other jurisdictions where C3P CIS were admitted. The statement is admitted.

R. v. Maytwayashing, 2022 MBPC 6: Sentencing decision after conviction for robbing a taxi driver, driving while impaired and refusing to provide a breath sample. Most serious part of the offence is the robbery. Crown submits a four year sentence is appropriate; defence submits Gladue principles call for a more lenient custodial sentence. Sentencing judge found accused had shown signs of rehabilitation while out on bail. Appropriate sentence is 18 months custody, with three months enhanced credit for pre-sentence custody.

Camas Ussery. The Myth of the “Ideal Victim”: Combatting Misconceptions of Expected Demeanour in Sexual Assault Survivors.(2022) 27 Appeal 3.

… This paper explores the research on trauma and demeanour and explains why it is critical that the legal profession appreciates its importance. The paper looks at many available yet underused options within the Canadian criminal justice system to mitigate the effects of trauma on demeanour and support survivors, and argues that their increased use would benefit survivors while maintaining the presumption of innocence that lies at the heart of a criminal trial.

Don Stuart. Fan: The Vexing Question of Distinguishing Mistakes of Fact from Those of Law. (2022) 75 C.R. (7th) 22 (WLNC – request a copy). In R. v. Fan, … the courts were confronted with the argument that the accused had a number of licences that made their grow operation legal. The trial judge rejected the defence and convicted. When the appeal reached the Court of Appeal Justice Trotter dismissed the appeal on the basis that the trial judge did not accept the evidence that they believed the grow operation was legal. In the alternative he carefully explored what he rightly dubbed the “vexing” question of whether, if there was such a mistake, it was one of law or fact. 


Family Law

Johnson v. Miazga, 2022 MBQB 80: Motion for recusal. Respondent requests Petersen, J. be recused as the case conference judge on the basis of alleged apprehension of bias on an individual basis as well as an institutional basis, because petitioner’s counsel is the daughter of a former family division justice. Extensive analysis of the law regarding recusal. Motion dismissed.

Eichkorn v Eichkorn, 2022 MBQB 79: Master’s report re separation date. Parties are two years apart on date of separation. In absence of agreement, s. 16 of The Family Property Act provides that the separation date is the date when the spouses last cohabited with each other. Affidavits of the petitioner, respondent and one witness served as the direct evidence. Parties lived under the same roof until June 2020; dispute is over when they began to live separate and apart under the same roof. After analysis of evidence, Master accepts petitioner’s position.

J.L.B. v. C.D.R., 2022 MBQB 74: Claims for divorce, parenting arrangements and child support. Parties agreed to an order of joint custody; mother sought an order of primary care and control with final decision-making authority and specified periods of care to the father, with certain conditions. Father sought a shared care arrangement with equal decision-making authority. Father has a significant history of drug addiction and mental health concerns. Under best interests of the child, mother is awarded primary care and control. Father is ordered to provide annual financial disclosure; divorce judgment issued.

Chanel v. Chanel, 2022 MBQB 70: Motion by petitioner (wife) for an order of summary judgment incorporating the terms of a purported settlement agreement concerning child and spousal support, and the sharing of assets and liabilities. Respondent (husband) opposes, stating he didn’t agree to the settlement agreement. Both parties were represented by experienced counsel. Analysis of appropriateness of summary judgment in a family law context. Doyle, J. finds that there is, wife is entitled to summary judgment pursuant to Rule 70.18.1.

R.J.S. v. The Director of Child and Family Services, 2022 MBQB 69: Objection to placement of name on Child Abuse Registry. The Registry is provincial jurisdiction and not tied to a criminal prosecution, so the proceedings are a civil process, determined on the civil burden of a balance of probabilities. Evidence included testimony of applicant and (now adult) child, plus initial disclosure email made to ECFS staff, written response to NOPI by R.J.S., and other documents. On a balance of probabilities, Court is satisfied that R.J.S. did abuse his child.

Windsor v. Hink, 2022 MBQB 30: Reference for accounting under The Family Property Act. Parties have kept most of their funds separate. Master must consider which funds have been intermingled. Consideration of numerous recent decisions on the issue of tracing and whether assets that are alleged to be inherited or pre-acquired remain exempt. Analysis of growth of funds in child’s RESP funded, in part, by child support received by mother, and whether a portion of that should be considered an asset of the wife and shareable with the husband (issue of “excessive gifting”).

Nicholas Bala and Rachel Birnbaum. Focusing on Children in Post-Separation Parenting. The Lawyer’s Daily, April 27, 2022.

Rollie Thompson, Q.C. SSAG FAQs 2022: Your Frequently (or occasionally) Asked Questions About the SSAG, and Some “Answers”.


Labour and Employment Law

People Corporation v. Mansbridge, 2022 MBCA 37: Plaintiff sought an interlocutory injunction against the defendant (a former employee) and his new employer to enforce restrictive covenants and a confidentiality clause. Motion was dismissed; this is the appeal. Issue of standard to be applied when considering the test set out in RJR-MacDonald Inc. v. Canada (Attorney General). CA determined a “strong prima facie case” is the standard. Appeal dismissed. 

Thorne v. NNCEA Inc.,2022 MBQB 62: Action for remedies in connection with termination of employment in June 2016. Defendant moves to dismiss the plaintiff’s action for delay pursuant to Rule 24.01 of the Queen’s Bench Rules. Plaintiff filed statement of claim in May 2017, amended December 2018; statement of defence filed February 2019. Plaintiff and his counsel discussed a reply between March and May 2019. Plaintiff made offer to settle in May 2020. Issues of whether there has been a delay, and whether the delay has resulted in significant prejudice. Both parties contributed to the delay. Chartier, J. found there was enough activity to move the file forward to dismiss the motion.

Legislation


Federal

House of Commons
44th Parliament, 1st Session

C-11 An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts
At second reading in the House of Commons
Show details

C-19 An Act to implement certain provisions of the budget tabled in Parliament on April 7, 2022 and other measures
At second reading in the House of Commons
Show details

C-237 An Act to amend the Federal-Provincial Fiscal Arrangements Act and the Canada Health Act
At second reading in the House of Commons
Show details

Senate

S-203 An Act respecting a federal framework on autism spectrum disorder
Short title: Federal Framework on Autism Spectrum Disorder Act
At third reading in the Senate
Show details

S-241 An Act to amend the Criminal Code and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act (great apes, elephants and certain other animals)
At second reading in the Senate
Show details

S-243 An Act to enact the Climate-Aligned Finance Act and to make related amendments to other Acts
At second reading in the Senate
Show details


Provincial

Bill NumberSponsored byAs proposed   (Click PDF for the bilingual version)
228Ms. NaylorThe Eating Disorders Awareness Week ActPDF
229MLA LindseyThe Transportation Infrastructure Amendment ActPDF
230Mr. WasyliwThe Budget Impact Reporting ActPDF
232Mr. MalowayThe Catalytic Converter Identification ActPDF
233Mr. WishartThe Engineering and Geoscientific Professions Amendment ActPDF
234Mrs. SmithThe Drug-Related Death Bereavement Day ActPDF
235Mr. AltomareThe Public Schools Amendment Act (Nutrition Programs)PDF

Proclamations

ChapterTitle     (provisions)Date in forceDate signedProclamation
SM 2021, c. 48The Reducing Red Tape and Improving Services Act, 2021 s. 51 Jun 202227 Apr 2022Proclamation
SM 2022, c. 7The Peak of the Market Reorganization Act Whole Act20 Apr 202212 Apr 2022Proclamation